September 2011 Archives


Brazil judge blocks Amazon jungle dam construction
Michael Haggerson on September 30, 2011 3:58 PM ET

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[JURIST] A Brazilian judge for the Federal Court of the First Region [official website, in Portuguese] ruled on Thursday that work on a dam [Belo Monte backgrounder] being constructed on the Xingu River in the Amazon jungle must cease. The USD $11 billion project would be the third-largest hydroelectric dam in the world [BBC report]. In deciding to suspend the project, the judge cited the damage the dam would cause to fishing for indigenous people. The government argued that the dam would provide the clean, renewable energy the country needs to meet growing energy needs.

Earlier this month, the Malaysian Federal Court [official website] unanimously ruled against indigenous people [JURIST report] challenging a similar hydroelectric dam. The indigenous people argued that they received inadequate compensation for the Sarawak government's seizure of their land to build the dam. The judges stated that if the plaintiffs were not satisfied with the amount of compensation then that is a matter for arbitration, not for the court. In December, the US government pledged to support the UN Declaration on the Rights of Indigenous Peoples [JURIST report], a non-binding UN treaty expressing support for the rights of indigenous peoples. The US was the last member to lend its support to the treaty. In August 2010, UN Secretary General Ban Ki-moon [official website] called on governments to improve the living conditions of indigenous peoples [JURIST report] and support the UN Declaration on the Rights of Indigenous Peoples.




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Federal judge refuses to block Kansas abortion insurance law
Michael Haggerson on September 30, 2011 2:53 PM ET

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[JURIST] A judge for the US District Court for the District of Kansas [official website] denied an injunction [opinion, PDF] on Thursday against a Kansas law [HB 2075 materials] that prohibits insurance companies from including coverage for abortion [JURIST news archive] in their comprehensive plans. The law prohibits comprehensive insurance plans from covering any abortion other than to save a woman's life but allows companies to offer a separate rider to cover abortions for an additional cost. The law will also ban coverage for abortion except in very limited instances in policies sold after 2014 under the new federal health care law. The American Civil Liberties Union (ACLU) [advocacy website] initially filed the suit challenging the law [JURIST report] last month. The ACLU argued that the law was invalid because its sole purpose was to make it more difficult for women to obtain abortion care. In explaining his reasoning, Judge Wesley Brown stated:
Where a law can be viewed as having a rational purpose other than simply obstructing the right to abortion, the court cannot presume that an invalid purpose actually motivated the legislature to adopt the law, let alone that the invalid purpose was the legislature's predominant motive.
Because of the denial of the injunction, the law will remain in effect while the litigation proceeds.

Kansas has recently imposed several other abortion restrictions. Last month, the state filed an appeal seeking to overturn a federal judge's ruling [JURIST reports] that blocks a law [HB 2014 materials] preventing Planned Parenthood of Kansas and Mid-Missouri (PPKM) [advocacy website] from receiving federal funding. In July a judge for the US District Court for the District of Kansas [official website] issued a preliminary injunction [JURIST report] to block a regulation [SB 36 materials] requiring clinics within the state to obtain a license to perform abortions. In April, Kansas Governor Sam Brownback (R) [official website] signed two pieces of legislation [JURIST report] restricting abortions 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.




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Rwanda genocide tribunal acquits former ministers
Sarah Posner on September 30, 2011 11:53 AM ET

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[JURIST] The International Criminal Tribunal for Rwanda (ICTR) [official website] on Friday acquitted [press release] two former Rwandan ministers, Casimir Bizimungu and Jerome Bicamumpaka, of genocide charges due to a lack of sufficient evidence. This decision is the most high-profile acquittal of the officials involved in the 1994 Rwandan genocide [HRW backrounder; JURIST news archive] during which 800,000 people were killed. The ICTR ordered the immediate release [Reuters report] of Bizimungu, Rwanda's former health minister and Bicamumpaka, Rwanda's former foreign affairs minister. The Trial Chamber convicted both Justin Mugenzi and Prosper Mugiraneza for conspiracy to commit genocide and direct and public incitement to commit genocide, sentencing both individuals to 30 years in prison. Mugenzi and Mugiraneza were convicted of conspiracy to commit genocide and incitement to commit genocide for participating in the removal of Butare's Tutsi Prefect, Jean-Baptiste Habyalimana, and based on their participation in a joint criminal enterprise at the installation ceremony where President Theodore Sindikubwabo gave a speech inciting the killing of Tutsis. The trial commenced in 2004 and consisted of nearly 400 days of trial, during which the ICTR heard evidence from witnesses.

On Tuesday, the Appeals Chamber for the ICTR heard oral arguments [JURIST report] in the case of Aloys Ntabakuze [HJP profile], a former Rwandan army officer convicted of genocide and related crimes. Ntabakuze appealed his December 2008 conviction, in which the Trial Chamber sentenced him to life imprisonment. Before a panel of five judges, Ntabakuze's lawyer requested an acquittal of the conviction because the prosecution lacked sufficient evidence and failed to provide adequate notice of the charges. Also on Tuesday, the Appeals Chamber heard oral arguments [JURIST report] in the appeal of Dominique Ntawukulilyayo, the former Sub-Prefect of the southern region of Gisagara. The five judges composing the Appeals Chamber will decide whether the Trial Chamber committed a number of errors of law and fact, as alleged by Ntawukulilyayo, who seeks a reversal of his conviction, an acquittal and immediate release or, in the alternative, a reduction of his sentence.




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Ninth Circuit vacates 'Don't Ask Don't Tell' ruling
Maureen Cosgrove on September 30, 2011 11:23 AM ET

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[JURIST] The US Court of Appeals for the Ninth Circuit [official website] on Thursday unanimously vacated [opinion, PDF] a district court ruling that the "Don't Ask, Don't Tell" policy (DADT) [10 USC § 654; JURIST backgrounder] was a violation of service members' constitutional rights. Earlier this month, lawyers for the US Department of Justice (DOJ) asked the appeals court to overturn that ruling [JURIST report]. The DOJ argued that the impendency of the repeal rendered the original court case moot [LAT report]. The Log Cabin Republicans (LCR) [advocacy website], the gay rights group that sued over the policy, urged the appeals court to uphold the ruling to prevent the government from banning gay military service in the future, noting that the new Congress may repeal the repeal [Bloomberg report]. The Ninth Circuit agreed with the DOJ, holding that the suit became moot when the Don't Ask, Don't Tell Repeal Act of 2010 [HR 2965 materials] took effect on September 20 [JURIST report], on the grounds that "the Supreme Court and our court have repeatedly held that a case is moot when the challenged statute is repealed, expires, or is amended to remove the challenged language." Circuit Judge Dairmuid O'Scannlain wrote a concurring opinion to say that the lower court failed to follow the Supreme Court's established law in Lawrence v. Texas [text] and created new rights for homosexuals by interpreting the decision too broadly.

In July, the Ninth Circuit ruled that DADT would remain partially in effect [JURIST report] during the 60 days prior to its scheduled repeal. The court effectively reiterated its order issued the previous week [JURIST report] in which it reinstated DADT but explicitly ordered the military to refrain from investigating, penalizing or discharging any of its members as originally provided for under the policy. Hours earlier, President Barack Obama [official website], Defense Secretary Leon Panetta [official profile] and the Joint Chiefs of Staff certified [JURIST report] DADT's repeal, scheduling the policy to end September 20. Obama signed the bill to repeal DADT [JURIST report] in December. The DADT Repeal Act was approved by the Senate in December after being passed [JURIST reports] by the House of Representatives the week before. Since the enactment of DADT in 1993, approximately 13,000 servicemen and women have been discharged from the armed forces as a result of the policy.




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US forces kill senior al Qaeda leader Anwar al-Awlaqi
Sarah Posner on September 30, 2011 10:54 AM ET

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[JURIST] A CIA drone strike in Yemen on Friday killed senior al Qaeda [GlobalSecurity backgrounder] leader, US citizen Anwar al-Awlaqi [BBC profile; JURIST news archive]. The strike marks the US government's most successful attack against al Qaeda since the raid leading to the death of Osama bin Laden [JURIST report] in Pakistan last May. The US-born radical Muslim cleric reportedly used his English and Internet skills to recruit individuals [AP report] for attacks in the US. To help garner support for al Qaeda, Awlaqi allegedly preached to people inside American mosques, and some of his talks were attended by the hijackers [Reuters report] involved in the 9/11 attacks against the US. Forty-year-old Awlaqi reportedly assumed a direct operational role in al Qaeda organizing attacks with other members in Yemen. The American Civil Liberties Union (ACLU) [advocacy website] criticized the targeted killing as a violation of both US and international law [press release]. The US has increased drone strikes in Yemen to try and reduce al Qaeda's power in the region and minimize the chaos spilling over the border into Saudi Arabia. The US targeted Awlaqi in a strike last May but missed.

Awlaqi, a dual US-Yemeni citizen, had been approved for targeting killing by the Obama administration, an action that was challenged based on Awlaqi's US citizenship. In December, a judge for the US District Court for the District of Columbia [official website] dismissed a lawsuit [JURIST reports] challenging the Obama administration's ability to conduct "targeted killings" in al-Awlaqi's case. Judge John Bates found that the court lacked jurisdiction over the case, filed by the ACLU and the Center for Constitutional Rights on behalf of Awlaqi's father, dismissing it on procedural grounds and noting that important questions remain. Bates heard arguments [JURIST report] in the case in November on the same day Awlaqi called for jihadist attacks on US citizens in a video posted on extremist websites. Earlier in November, Yemeni prosecutors charged [JURIST report] Awlaqi with incitement to kill foreigners, and he was later sentenced in absentia to 10 years in prison.




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Rwanda genocide tribunal upholds convictions of ex-military officer, businessman
Hillary Stemple on September 30, 2011 10:39 AM ET

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[JURIST] The Appeals Chamber of the International Criminal Tribunal for Rwanda (ICTR) [official website] on Wednesdayaffirmed the convictions [press release] of ex-army officer Ephrem Setako and former businessman Yussuf Munyakazi [case materials] on charges stemming from the 1994 Rwandan genocide [JURIST news archive]. The Appeals Chamber dismissed Setako's appeal in its entirety and affirmed his conviction on charges of genocide, crimes against humanity and murder of Tutsi at a military camp in northern Rwanda between April and May 1994. The prosecution's appeal in Setako's case was partially granted, with the court entering a new conviction against Setako related to the killings in May 1994. The Appeals Chamber determined that an additional conviction of murder as a serious violation of Article 3 [text] of the Geneva Convention was warranted for Setako but did not increase the length of his sentence. In affirming the conviction of Munyakazi on charges of genocide and extermination as a crime against humanity, the Appeals Chamber dismissed appeals [judgment, PDF] by both the defense and prosecution. The trial court found Munyakazi liable for the deaths of more than 5,000 Tutsi civilians during the 1994 genocide and found that he "intended to destroy the Tutsi ethnic group in whole or in part." Munyakazi challenged the trial chamber's assessment of the evidence presented at trial, as well as assessment of the legal elements of the crimes for which he was charged. The Appeals Chamber found no error in either the trial chamber's weighing of evidence or interpretation of the elements of the crimes. The Appeals Chamber also determined that both Setako and Munyakazi should be credited for the time they have spent in prison since their arrests.

Setako was convicted and sentenced [JURIST report] to 25 years in prison in February 2010 by the Trial Chamber of the ICTR. His trial began [JURIST report] in August 2008. Setako was arrested in the Netherlands in February 2004 and later transferred to a UN detention facility. He subsequently pleaded not guilty. In July 2010, Munyakazi was also sentenced to 25 years in prison [JURIST report] by the Trial Chamber of the ICTR. Rwandan authorities had sought to have Munyakazi transferred to Rwanda for trial, but that request and the subsequent appeal were both denied [JURIST report] based on concerns that the judiciary in Rwanda may not be fully independent and immune from outside pressure. The ICTR has transferred some cases to the Rwandan courts, including the case [JURIST reports] of former Rwandan pastor Jean-Bosco Uwinkindi [case materials], as part of a strategy intended to finish the court's trial work by 2011. Rwandan Prosecutor General Martin Ngoga told the UN Security Council last year that the decisions by the ICTR not to transfer pending cases to Rwandan jurisdiction, including genocide suspect Jean-Baptiste Gatete [case materials], undermine judicial reforms [JURIST report] and hinder national reconciliation. JURIST Guest Columnist and former Managing Editor Ingrid Burke, who has personal experience at the ICTR, argues that some cases ought to be referred to Rwandan courts [JURIST op-ed], suggesting that doing so "is in the best interest of both the Rwandan judiciary's stability and the benefit of international criminal law in the future."




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Rights groups file suit challenging North Carolina ultrasound law
Maureen Cosgrove on September 30, 2011 10:11 AM ET

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[JURIST] The American Civil Liberties Union (ACLU) [official website], along with several other rights groups and physicians, filed a lawsuit [complaint, PDF] on Thursday challenging a North Carolina law [HB 854 materials] that requires abortion providers to show women ultrasounds prior to performing abortions. The measure, known as the "Women's Right to Know Act," would also require a physician to provide information to the woman regarding gestation, the risks of abortion procedures, abortion alternatives and federal medical benefits available. The plaintiffs claim that the law is unconstitutional under the First, Fourth and Fourteenth Amendments [text] of the US Constitution. The complaint furthers alleges that the requirements will inflict significant harm on the doctor-patient relationship, harm the integrity of abortion providers and inflict harm on the abortion patients. The Legal Director for the ACLU of North Carolina Legal Foundation [advocacy website], Katy Parker, said the new law would create painful experiences [press release] for women seeking abortions:
This law forces a doctor, while performing an ultrasound, to describe the embryo or fetus and put pictures in front of the woman's face even if the woman says she doesn't want to see them. Imagine the pain this causes a woman who is forced to end a wanted pregnancy because of a catastrophic health emergency—or the additional trauma this unnecessary requirement will cause victims of rape or incest. No doctor should be forced to put a patient through that unnecessary trauma.
The plaintiffs are seeking declaratory and injunctive relief against the legislation.

The bill became law in July when the North Carolina Senate and House of Representatives voted to override a veto [JURIST reports]
by Governor Beverly Perdue [official website]. North Carolina is one of several state legislatures to have acted recently to limit abortion rights. Both Texas and Florida [JURIST reports] have recently passed bills requiring ultrasounds before abortions. In June, the Center for Reproductive Rights (CRR) [advocacy website] filed a lawsuit challenging the Texas law [JURIST report]. In March, South Dakota passed a law requiring a three-day waiting period [JURIST report] before an abortion—the longest waiting period requirement in the country. That law is also facing a court challenge [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, Ohio, Oklahoma, Kansas and Idaho [JURIST reports].




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Bahrain military court sentences protesters, medical workers
Hillary Stemple on September 30, 2011 9:48 AM ET

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[JURIST] A special security court in Bahrain [JURIST news archive] on Thursday sentenced one anti-government protester to death for killing a police officer, and gave lengthy prison sentences to medical personnel, including doctors, for providing treatment to injured protesters during the country's uprising. The National Safety Court of Appeal, a court composed of military prosecutors and civilian and military judges, sentenced defendant Ali Yusuf Abdulwahab Al Taweel to death for deliberately murdering a police officer [BNA report] in an act of terror, endangering the lives of others, and spreading fear and terror during the protests. A second defendant, Mehdi Ali Attia, was sentenced to life in prison for his role in the officer's death. The court also sentenced 20 other alleged protesters, including 12 physicians who had reportedly joined a hunger strike [JURIST report], to terms ranging from five to ten years imprisonment for events occurring at a medical complex. The defendants were accused of having possession of Molotov cocktails and other weapons for the purposes of ousting the ruling regime, confiscating medical equipment, spreading lies and violating laws and regulations in order to disturb public security. The court also upheld the sentences of 21 other jailed anti-government protesters, after hearing their appeals [JURIST report] earlier this month. A spokesperson for the Office of the UN High Commissioner for Human Rights (OHCHR) [official website] questioned the fairness of the proceedings [UN News Centre report] stating that, "For such harsh sentences to be handed down to civilians in a military court with serious due process irregularities raises severe concerns." The OHCHR urged the Bahraini government to ensure that all detainees are charged with a recognizable criminal offense, and that they have enough time to prepare a defense. A spokesperson for the World Health Organization (WHO) [official website] also questioned the sentences of the physicians [AP report], stating that health care workers have an ethical obligation to care for the injured, and they should not be punished for performing this duty.

Bahraini King Hamad bin Isa Al Khalifa [official profile] announced last month that he will dismiss charges against some of the protesters [JURIST report] detained for their participation in pro-democracy demonstrations in the country. In June, Khalifa announced that an independent commission will investigate human rights violations [JURIST report] related to the country's pro-democracy protests. Earlier that month, the OHCHR announced that Bahrain agreed to permit a UN commission [JURIST report] to investigate human rights violations related to protests. The National Safety Courts were instituted in mid-March under Khalifa's three-month state of emergency [JURIST report] and have been internationally criticized, most recently [JURIST report] by Human Rights Watch (HRW) [advocacy website]. The court sentenced nine citizens [JURIST report] to 20 years in prison for kidnapping a police officer in May. In April, the court handed the death sentence to four protesters, a rarity in Bahrain, and upheld the sentences [JURIST reports] for two of the men who were accused of murdering police officers. All of the charges levied in the National Safety Court have been disputed by Bahraini citizens and international rights organizations.




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Rights groups file Canadian indictment against Bush for torture
Julia Zebley on September 30, 2011 9:26 AM ET

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[JURIST] Two rights organizations filed an indictment [text, PDF; case materials] against former US president George W Bush [JURIST news archive] with the Canada Department of Justice [official website] on Thursday accusing him of commissioning a torture program during his time in office. The Center for Constitutional Rights (CCR) [advocacy website] filed the same complaint earlier this year [JURIST report] in Geneva, Switzerland, forcing Bush to cancel a planned speaking engagement there, although for this suit they are joined with the Canadian Centre for International Justice (CCIJ) [advocacy website]. Representatives of the CCR and CCIJ called for international accountability against the former president [press release], and for Canada to exercise its justice system:
Canada has a strong legal framework and there is absolutely no ambiguity in our criminal code when it comes to committing or allowing torture. There is grave evidence that former President Bush sanctioned and authorized acts of torture, not only in violation of Canadian laws, but also of international treaties that Canada has ratified. It is therefore clear that our government has both the jurisdiction and the obligation to prosecute Bush should he set foot again on Canadian territory.
The groups allege a violation of the UN Convention Against Torture [text] and accuse Bush of sanctioning enforced disappearances and secret detention as well as a variety of acts of torture, including: "exposure to extreme temperatures, sleep deprivation, punching, kicking, isolation in 'coffin' cells for prolonged periods, threats of bad treatment, solitary confinement and forced nudity." Bush is scheduled to speak in Canada on October 20. Neither he nor the Canadian Justice Department have commented on the charges.

Several human rights groups have urged investigations into alleged detainee abuses authorized by the Bush administration. This summer, Human Rights Watch (HRW) [advocacy website] urged the Obama administration to begin a criminal investigation [JURIST report] into alleged detainee abuses authorized by Bush following the 9/11 terrorist attacks [JURIST news archive]. Other calls to investigate the criminal culpability of Bush and officials in his administration have been rejected consistently by US officials [JURIST report]. In November, the American Civil Liberties Union (ACLU) [advocacy website] urged US Attorney General Eric Holder to investigate Bush for violation of the federal statute prohibiting torture. Former defense secretary Donald Rumsfeld [JURIST news archive] also faced possible criminal charges, when, in 2007, a war crimes complaint was filed against him [JURIST report] in Germany for his involvement in detainee treatment. The case was later dismissed [JURIST report]. In June 2010, the ACLU called on the Obama administration to stop shielding Bush administration officials [JURIST report] from civil suit and criminal prosecution in relation to the treatment of detainees in US custody.




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Amnesty urges Lithuania to reopen investigation into secret CIA prisons
John Paul Putney on September 30, 2011 8:28 AM ET

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[JURIST] Lithuania must reopen the investigation [press release] into secret CIA prisons [JURIST news archive] in light of new evidence, Amnesty International (AI) [advocacy website] insisted Thursday. AI cited evidence of rendition flights of Abu Zubaydah [NYT profile; JURIST news archive] in 2005 revealed earlier this year by Reprieve [advocacy website], a London-based human rights organization. AI counter-terrorism and human rights expert, Julia Hall, pressed authorities:
The Lithuanian authorities should not hide behind the blanket claim of "state secrecy" to prevent allegations of disappearance and torture from being properly investigated. No one has been held accountable for helping the USA to construct these secret sites or for any violations that may have occurred in them. ... The Lithuanian authorities must reopen their investigation into these operations, including the activities of US officials, and hold accountable those responsible for complicity in all abuses that have taken place.
Deputy prosecutor general, Darius Raulusaitis, indicated prosecutors would decide whether the new evidence was significant enough [AP report] to restart the investigation within a few weeks [Reuters report].

In January, human rights groups pressed for Lithuania's investigation to be reopened, calling the decision to stop the investigation premature [JURIST report]. In 2009, the Lithuanian Parliament National Security Committee reported that the CIA had established secret prisons for al Qaeda suspects in the Baltic country. Lawmakers demanded the investigation [JURIST report] after ABC News reported that former CIA officials said that Lithuania provided the CIA with facilities for a secret prison for high-value al Qaeda suspects in order to improve relations with the US. The parliamentary committee concluded that the Lithuanian State Security Department provided the CIA with two secret facilities, but it is unclear whether either facility was used to interrogate detainees. Lithuanian Foreign Minister Vygaudas Usackas resigned [JURIST report] last January in the midst of a dispute with President Dalia Grybauskaite [official profile] over whether the prisons were in the country. Grybauskaite has publicly said that she believes there were prisoners held in Lithuania, but Usackas has denied this.




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Kazakhstan parliament approves restrictive legislation to curb religious extremism
John Paul Putney on September 30, 2011 7:32 AM ET

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[JURIST] The upper house of the Kazakhstani parliament [official website] on Thursday passed a controversial bill dissolving religious organizations and requiring re-registration, drawing criticism from international observers. Recently, Kazakhstani lawmakers have been unsettled by religious extremists [VOA report] plotting acts of terrorism across Central Asia's largest economy. The bill dissolves current registrations and establishes a procedure requiring groups to meet membership thresholds [AP report]—at least 50 members to register locally, 500 members to register regionally and 5,000 members to register nationally—in order to be able to re-register in the predominantly Muslim country. The law also limits where a person may worship [Telegraph report] and bans prayer rooms from government buildings altogether. Critics of the law, including Freedom House [advocacy website], have complained [press release] the law "grossly curb[s] Kazakhstani citizens' right to freely practice and express their faith." President Nursultan Nazarbayev [official website, in Kazakh; BBC profile], who proposed the new measures, is expected to sign the new law soon.

Human rights groups have closely scrutinized Kazakhstan's adherence to its international human rights obligations. In April, Nazarbayev discharged six justices [JURIST report] of the Supreme Court of the Republic of Kazakhstan [official website] for corruption. 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 [JURIST report] 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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Libya issues arrest warrant for ex-PM
Michael Haggerson on September 29, 2011 3:50 PM ET

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[JURIST] The Libyan National Transitional Council (NTC) [official website] issued an arrest warrant for former prime minister Al Baghdadi Ali Al-Mahmoudi on Wednesday. Al-Mahmoudi was arrested in Tunisia [JURIST report] last week and sentenced to six months in prison for illegally entering the country. The conviction was overturned [BBC report] by a Tunisian appeals court, however. Al-Mahmoudi has since gone on hunger strike [AFP report] in response to his detention by Tunisian authorities who are holding him based on a request from INTERPOL [official website].

Last month Al-Mahmoudi requested that the UN create a "high-level commission" to investigate alleged human rights abuses [JURIST report] by the North Atlantic Treaty Organization (NATO) [official website]. Although NATO was mandated by the UN to use force in order to stop Muammar Gaddafi from fomenting violence upon Libyan citizens, the campaign has allegedly gone beyond the scope of protecting civilians and recently led to the death of 85 civilians in one night after NATO forces bombed a residential area supposedly housing a rebel command center. In June, the UN Human Rights Council (UNHRC) [official website] decided to extend a mandate to an investigative panel instructing it to continue its investigation of human rights abuses in Libya, after it published a 92-page report [JURIST reports]. The report claims Libyan authorities have committed crimes against humanity such as acts constituting murder, imprisonment and other severe deprivations of physical liberties, torture, forced disappearances and rape "as part of a widespread or systematic attack against a civilian population with knowledge of the attack."




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US lawmakers ask FTC to investigate Facebook over privacy concerns
Michael Haggerson on September 29, 2011 2:46 PM ET

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[JURIST] US Congressmen Edward Markey (D-MA) and Joe Barton (R-TX), co-chairs of the Congressional Privacy Caucus, sent a letter to the Federal Trade Commission (FTC) [official websites] on Wednesday asking the FTC to investigate allegations that Facebook [website] is tracking users' activities even after they have logged out of the website [text, PDF]. Australian blogger Nik Cubrilovic [official website] broke the initial news [blog post] of Facebook tracking users and has since posted an update [blog post] stating that Facebook has since "changed as much as they can change with the logout issue." Nonetheless, the Congressmen cited a statement from Facebook Director of Engineering, Arturo Bejar, that fully fixing the logout issue "will take a while" in petitioning for a FTC investigation. They believe that Facebook's conduct possibly falls within 15 USC § 45 [text], section 5 of the Federal Trade Commission Act [text, PDF], which protects citizens from "unfair or deceptive acts or practices in or affecting commerce." The Electronic Privacy Information Center (EPIC) [advocacy website] sent a letter to the FTC calling for an investigation into Facebook's conduct [letter, PDF; press release] as well. EPIC contends that Facebook is tracking user data so that it may sell the data to third-parties. EPIC also has a complaint about Facebook's facial recognition system [text, PDF], which automatically "tags" users when others upload photos of them, currently pending before the FTC.

The Hamburg Commissioner for Data Protection and Freedom of Information [official website, in German] also filed a complaint over Facebook's facial recognition system in August, arguing that it violates European data protection laws [JURIST report]. In December South Korea stated that Facebook was not in compliance with the nation's data privacy laws [JURIST report]. The South Korean authorities especially took issue with Facebook's alleged policy of gathering users' data without first obtaining consent from them. The Canadian Office of the Privacy Commissioner [official website] announced in January 2010 that it would launch a probe [JURIST report] into complaints that the website was violating users' privacy. In August 2009 five Facebook users brought suit against Facebook in California, alleging that the social networking violated their privacy [JURIST report].




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UN rights expert urges Cambodia to review proposed NGO law
Andrea Bottorff on September 29, 2011 2:09 PM ET

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[JURIST] The UN Special Rapporteur on human rights in Cambodia Surya Subedi [official profile] on Wednesday urged the Cambodian government to review a proposed law that would hinder non-governmental organization (NGO) efforts in the country. The proposed Law on Associations and Non-Governmental Organisations (LANGO) would force potential NGOs to meet strict eligibility requirements and to complete a government registration. When presenting his annual report [text, PDF] on the situation of human rights in Cambodia to the UN Human Rights Council [official website], Subedi said that, while Cambodia has the sovereign right to pass regulatory laws, LANGO's unnecessary registration requirements would prevent NGOs from fully contributing to long-term progress in the country. Last month, 130 NGOs working in Cambodia publicly opposed the proposed law [statement, PDF], saying that the law would hurt the vital role that civil society organizations play in the continued development of the country. The Cambodian Interior Ministry [official website] has agreed to review [VOA report] at least one draft of the law before sending it to the Council of Ministers [official website] for approval.

Subedi also reported that human rights in Cambodia are improving. As part of the mission to promote human rights, the UN-backed Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website] continues to try suspects accused of genocide and related crimes committed under the Khmer Rouge regime [BBC backgrounder] during its reign in Cambodia from 1975-1979. Last week, the ECCC ordered the trials of four alleged Khmer Rouge leaders be split into a series of smaller trials [JURIST report] to allow the tribunal to deliberate more quickly in the case. A week earlier, the ECCC concluded three days of hearings [JURIST report] aimed at determining whether two of the four Khmer Rouge leaders were fit enough to stand trial on accusations of genocide and other war crimes. The four leaders include Nuon Chea, who was Pol Pot's second-in-command and the group's chief ideologist, former head of state Khieu Samphan, ex-foreign minister Ieng Sary, and his wife, Ieng Thirith [case profiles, PDFs], who served as minister for social affairs. All four pleaded not guilty to charges including crimes against humanity, war crimes, genocide, religious persecution, homicide and torture.




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USS Cole bombing suspect to face military tribunal at Guantanamo
Dan Taglioli on September 29, 2011 12:56 PM ET

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[JURIST] The US Department of Defense (DOD) [official website] Wednesday officially referred charges against a high-profile Guantanamo Bay [JURIST news archive] detainee who allegedly planned the 2000 attack on the USS Cole [JURIST news archive] that left 17 sailors dead and 37 others injured. Saudi-born former millionaire Abd al-Rahim al-Nashiri [JURIST news archive] will stand trial before a military tribunal [DOD press release] at Guantanamo on nine terrorism, conspiracy and murder charges [charge sheet, PDF]. Specifically al-Nashiri will be charged with orchestrating the attack on the Cole, during which two suicide bombers rammed an explosives-laden boat into the guided missile destroyer, blowing a vast hole into its side. The charges also allege that al-Nashiri was in charge of planning and preparation for an attempted attack in the same year on USS The Sullivans as it refueled in the Port of Aden, and for an attack on the French civilian oil tanker MV Limburg in the same port in 2002, which resulted in the death of one crewmember and the release of approximately 90,000 barrels of oil into the gulf. A "referral of charges" by the DOD Military Commissions unit is the mechanism that officially begins the process that leads to the appointment of a military officer as trial judge, who is then required to conduct an arraignment within 30 days of the referral. al-Nashiri's case has been referred for trial as a capital case, meaning he could face the death penalty if convicted. In June the European Parliament (EP) [official website] urged the US not to seek the death penalty [JURIST report] in the case.

Complicating his 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] to question al-Nashiri and fellow detainee Abu Zubaydah about the existence of the facility, saying their testimony was essential to establishing its existence. Relatedly, in 2007 a federal judge ruled that Sudan was liable [JURIST report] in a civil suit for government actions that "induced" the USS Cole bombing.




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France appeals court rejects extradition of Rwanda ex-president's widow
Andrea Bottorff on September 29, 2011 12:55 PM ET

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[JURIST] The Court of Appeal of Paris [official website, in French] on Wednesday rejected a request from Rwandan officials to extradite Agathe Habyarimana, widow of assassinated Rwandan president Juvenal Habyarimana [Britannica profile], to Rwanda to face trial on genocide charges. Habyarimana has been accused of helping to plan the 1994 Rwandan genocide [BBC backgrounder] between Hutus and Tutsis in which more than 800,000 people, primarily Tutsis, were killed in the span of 100 days. After her husband's assassination, which led to an escalation of violence that sparked the genocide, Habyarimana was transported from Rwanda by the French military [BBC report] and has since been living outside Paris, although she was arrested [JURIST report] briefly in March 2010 by French police complying with an international arrest warrant issued by the Rwandan government [official website]. Rwanda's chief prosecutor Martin Ngoga said that Rwanda has never extradited a suspect from France and that the court's decision was not based on the merit of the accusations [AFP report] against Habyarimana. Ngoga also said that Rwandan officials would accept the option of Habyarimana facing trial in France [New Times report].

Individuals accused of participating in the Rwandan genocide continue to face trial, both in Rwandan courts and at the International Criminal Tribunal for Rwanda (ICTR) [official website]. Earlier this week, the Appeals Chamber for the ICTR heard oral arguments [JURIST report] in the case of Aloys Ntabakuze [HJP profile], a former Rwandan army officer convicted of genocide and related crimes.The Trial Chamber of the ICTR charged and convicted [judgment, PDF] Ntabakuze in a case known as "Military I" that joined two other former army officers. The same day, the ICTR also heard oral arguments [JURIST report] in the appeal of Dominique Ntawukulilyayo, the former Sub-Prefect of the southern region of Gisagara. Ntawukulilyayo was indicted [case materials] in 2005 on charges of genocide, complicity in genocide and public incitement to commit genocide for falsely promising protection to ethnic minority Tutsi refugees, all of which occurred during the 1994 Rwandan genocide. In June, the ICTR transferred the case [JURIST report] of former Rwandan pastor Jean-Bosco Uwinkindi [Hague Justice profile] to Rwanda to be tried in the Rwandan national court system. Last year, the ICTR transferred the cases of 25 suspects [JURIST report], who had been investigated but not yet indicted by the ICTR and who were believed to be in hiding abroad, to Rwandan authorities.




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Federal judge refuses to enjoin most of Alabama immigration law
Dan Taglioli on September 29, 2011 11:45 AM ET

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[JURIST] A judge for the US District Court for the Northern District of Alabama on Wednesday refused to block key parts of Alabama's recently passed immigration law. Chief Judge Sharon Lovelace Blackburn, in a 115-page memorandum opinion [text, PDF], ruled that the federal government's challenge to the Beason-Hammon Alabama Taxpayer and Citizen Protection Act [HB 56 text] had not met the requirements for a preliminary injunction [AP report] on a majority of the act's provisions. Blackburn did enjoin enactment of certain specifications, but included only the four sections that would 1) make it a crime for an illegal immigrant to solicit work, 2) make it a crime to transport or harbor an illegal immigrant, 3) allow discrimination lawsuits against companies that dismiss legal workers while hiring illegal immigrants and 4) forbid businesses from taking tax deductions for wages paid to workers who are in the country illegally. In her evaluation of the requirements for judicial injunction of a legislative act, the judge the concluded:
that there is a substantial likelihood that the United States will succeed on the merits of its claim that Sections 11(a), 13, 16, and 17 of H.B. 56 are preempted by federal law. The court further finds that the United States will suffer irreparable harm if these sections of H.B. 56 are not enjoined, the balance of equities favors the entry of an injunction, and its entry would not be adverse to the public interest. Therefore, the Motion for Preliminary Injunction will be granted as to these sections.
Among the portions of the law that escaped the preliminary injunction are provisions that require immigration status checks of public school students and of suspects pulled over by police, allow police to hold suspected illegal immigrants without bond, bar state courts from enforcing contracts involving illegal immigrants, make it a felony for an illegal immigrant to do business with the state and make it a misdemeanor for an illegal resident not to have immigration papers. State decisions on whether to begin enforcing these provisions have not yet been announced [Reuters report], but last month's temporary injunction on the whole act [JURIST report] is set to expire at the end of this month. Republican Governor Robert Bentley [official website] said he would fight to get the full law upheld and the state's attorney general said officials were weighing whether to appeal immediately or wait until the judge issues her final decision.

The US Department of Justice (DOJ) [official website], joined by several rights groups, appeared before the court last month [JURIST report] to make arguments against the law's enactment, at which point Blackburn issued the temporary injunction to forestall enactment of the challenged provisions while she evaluated their contention with federal statute. Religious groups and representatives of several rights groups including the American Civil Liberties Union (ACLU), the National Immigration Law Center (NILC), the Southern Poverty Law Center (SPLC) and the Mexican American Legal Defense and Educational Fund (MALDEF) [advocacy websites] have stated that the Alabama law is the most extreme of the recent state anti-immigration laws influenced by controversial Arizona SB 1070 [JURIST news archive]. Alabama lawmakers have defended the legislation, which was signed into law [JURIST reports] in June. Since that time, 16 countries filed briefs [JURIST report] in the Alabama district court against the controversial law, arguing that it provides unfair treatment to citizens of those countries currently residing in Alabama and sanctions discriminatory treatment based on ethnicity.




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Ivory Coast initiates post-election violence reconciliation commission
Maureen Cosgrove on September 29, 2011 11:33 AM ET

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[JURIST] The Ivory Coast government on Wednesday launched a Truth and Reconciliation Commission to resolve conflicts stemming from the widespread post-election violence [JURIST news archive] that took place earlier this year. The 11-member commission, modeled on similar efforts [AP report] taken by South Africa during the post-apartheid era, is composed of Ivory Coast religious leaders and other dignitaries and is headed by former prime minister Charles Konan Banny. Former Ivory Coast president Laurent Gbagbo [BBC profile] was captured and forced from office [JURIST report] after refusing to leave despite losing last November's election to now President Alassane Ouattara [BBC profile], which resulted in months of fighting between Ouattara's and Gbagbo's forces. More than 3,000 people were killed from December to April following the election. The commission is likely to hear complaints from the families of people killed by Gbagbo's military. Rights groups are insisting that the government hear cases from families of those killed by Ouattara forces as well.

In August, Ouattara set up a commission of inquiry [JURIST report] to investigate crimes and human rights violations that took place during the violence. Ivory Cost Justice Minister Jeannot Ahoussou Kouadio signed an agreement [JURIST report] with the International Criminal Court (ICC) [official website] in June, allowing an investigation into political violence to proceed and pledging cooperation with the ICC. Earlier that month, an official for the UN's International Commission of Inquiry called for an investigation [JURIST report] into Ouattara and his forces' continuing attacks against supporters of ousted leader Gbagbo. In April, Human Rights Watch (HRW) [advocacy website] 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 Republican Force of Ivory Coast killed more than 100 civilians, raped at least 20 supporters of Gbagbo and burned at least 10 villages in March. The International Committee of the Red Cross (ICRC) [official website] also reported the deaths of at least 800 civilians [JURIST report] in the Ivory Coast town of Duekoue as a result of intercommunal violence.




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Mexico high court allows state anti-abortion amendment
Maureen Cosgrove on September 29, 2011 10:21 AM ET

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[JURIST] The Supreme Court of Mexico [official website, in Spanish] on Wednesday upheld a state right-to-life constitutional amendment that says life begins at conception. The amendment effectively bans abortions [AP report] in Mexico's northern Baja California state. Seven of 11 justices on the court, who argued that the issue was a federal and not state issue, voted to overturn the amendment, but failed to meet the requisite eight votes to overturn the law on constitutional grounds. Sixteen Mexican states have adopted similar amendments, though most states permit abortion in limited circumstances. Mexico City [official website, in Spanish] legislators voted legalize abortion within the city [JURIST report] in April 2007.

Abortion is generally illegal throughout the heavily Roman Catholic country, with exceptions only for cases of rape. Mexico City previously loosened the country's restriction to allow abortions when the health of the mother was in danger. Conservatives in the country, including President Felipe Calderon [official website, in Spanish] and his National Action Party (PAN) [party website, in Spanish] are strongly opposed to any relaxation of abortion law. Others say that the current laws endanger poor women who, unlike wealthier Mexicans, cannot afford to travel to the US for the surgery and so must resort to unsafe back-alley abortions. In 2006, Human Rights Watch (HRW) [advocacy website] conducted an extensive study of abortion availability for rape victims in Mexico [study text], finding that those seeking legal abortions often are intimidated with insults and threats of legal retaliation by both prosecutors and health workers.




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UK court denies brain-damaged woman right to die
Erin Bock on September 29, 2011 8:33 AM ET

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[JURIST] A UK High Court judge ruled [judgment, PDF] Wednesday that a brain-damaged woman in a "minimally conscious" state does not meet statutory requirements to allow her family to discontinue life-sustaining treatment. The woman, known as "M," contracted viral encephalitis in February 2003, fell into a coma and subsequently emerged in what was later determined to be a "minimally conscious," non-vegetative state. The family's request to discontinue treatment was a case of first impression in the UK, as the courts previously had only ruled on cases involving patients in vegetative states. After hearing testimony from the family and M's medical staff, Justice Baker determined that the situation failed to meet the requirements under the Mental Capacity Act [materials]. Specifically, M did not make any formal advance decision regarding the withdrawal of treatment if she were to be in her existing state. Baker determined that "the importance of preserving life [was] the decisive factor" in the case, but also acknowledged that the family would likely be disappointed in the outcome:
I realise that this decision will be a severe disappointment to members of M's family who have endured years of anguish during which they have demonstrated their deep devotion to M. ... I urge everyone concerned with M—doctors, care staff, and her family—to work together to agree on a revised care plan which gives her an opportunity of more positive experiences.
Baker also determined that M's "Do Not Resuscitate" order should be continued but held that other treatment decisions should be left to medical and care staff.

The right to die has been a highly contentious issue around the world. Last month, the Supreme Court of British Columbia [official website] dismissed [JURIST report] a right to die suit for lack of standing. The suit challenged the constitutionality of a provision of section 241(b) of the Criminal Code of Canada [text], which criminalizes assisted suicide. Earlier this year, the Supreme Court of India [official website] rejected a petition for mercy killing [JURIST report] but ruled that passive euthanasia was permissible under certain circumstances. The German Federal Court of Justice [official website, in German] ruled in October that removing a patient from life support is not a criminal offense [JURIST report] if the terminal individual had previously given consent. The year before, the Supreme Court of Western Australia [official website] upheld the right to die [JURIST report] in a case involving a quadriplegic who asked to be removed from food and hydration services.




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Both sides appeal to Supreme Court on health care law
Erin Bock on September 29, 2011 7:42 AM ET

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[JURIST] Both the US Department of Justice (DOJ) [official website] and a group of 26 states filed petitions with the US Supreme Court [official website] Wednesday seeking a ruling on the constitutionality of the Patient Protection and Affordable Care Act (PPACA) [HR 3590 text; JURIST backgrounder]. The petitions for certiorari filed by the DOJ and states [petitions, PDF] seek review of a decision handed down by the US Court of Appeals for the Eleventh Circuit [official website] last month. The Eleventh Circuit found the PPACA individual health care mandate unconstitutional [JURIST report] but upheld the remainder of the law without the mandate. The states asked the court to affirm the Eleventh Circuit's decision regarding the individual mandate requirement. The states also sought review of the PPACA as a whole, arguing that the act must fail because the individual mandate was "the centerpiece" of the entire piece of legislation. The DOJ asked the court to reverse the Eleventh Circuit's decision, arguing that it was "fundamentally flawed" and that Congress has "broad deference" to enact laws regarding economic and tax policies. In a statement [text], the DOJ expressed confidence that the Court would find the law constitutional and compared the PPACA lawsuits to other historical legislative challenges:
Throughout history, there have been similar challenges to other landmark legislation such as the Social Security Act, the Civil Rights Act, and the Voting Rights Act, and all of those challenges failed. We believe the challenges to [PPACA]—like the one in the Eleventh Circuit—will also ultimately fail and that the Supreme Court will uphold the law.
Additionally, the Obama Administration filed a brief [text, PDF] in opposition to a petition for certiorari filed [JURIST report] in Thomas More Law Center v. Obama in July, which sought review of a decision by the US Court of Appeals for the Sixth Circuit [official website] that found the individual mandate provision constitutional [JURIST report]. The administration asked the court to either delay review of that decision or to consolidate the two cases.

Lawsuits involving the constitutionality of the PPACA have led to split decisions in federal courts across the country. Earlier this month, a judge for the US District Court for the Middle District of Pennsylvania [official website] found the individual mandate provision unconstitutional [JURIST report]. Also this month, the US Court of Appeals for the Fourth Circuit [official website] dismissed two lawsuits [JURIST report] challenging the constitutionality of the PPACA. In Virginia v. Sebelius, the court held that Virginia lacked standing to sue and vacated the judgment of the district court [JURIST report], remanding the case with instructions to dismiss the suit for lack of subject-matter jurisdiction. In Liberty University v. Geithner, the court ruled that the suit was filed prematurely, also vacating the lower court ruling [JURIST report], which had declared the act constitutional. Last month, the US Court of Appeals for the Third Circuit [official website] dismissed a lawsuit [JURIST report] brought by a physician organization for lack of standing.




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Federal judge rules Iraqi national can be tried in Kentucky court
Dan Taglioli on September 28, 2011 3:13 PM ET

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[JURIST] A judge for the US District Court for the Western District of Kentucky [official website] ruled Tuesday that an Iraqi national can stand trial in US civilian court for terrorism-related crimes. Chief Judge Thomas Russell, in an 11-page opinion, rejected [Courier-Journal report] arguments made by Waad Ramadan Alwan that, under the Geneva Convention, he could only be prosecuted in Iraq. Alwan is an Iraqi citizen who allegedly carried out numerous improvised explosive device (IED) attacks against US troops in Iraq, according to the Department of Justice [press release text]. Russell determined that the Geneva Civilian Convention [treaty text] does not bar concurrent jurisdiction by foreign and US courts and that, although Alwan claimed that the federal law under which he was charged was intended only to protect diplomatic personnel overseas, in fact the statute may be extended to criminalize insurgent and terrorist activities in other countries even though those same acts may be punishable in Iraqi courts as well. Alwan is charged with conspiracy to kill US nationals abroad, conspiracy to use a weapon of mass destruction (explosives) against US nationals abroad, distributing information on the manufacture and use of IEDs, attempting to provide material support to terrorists and to al-Qaeda in Iraq and conspiracy to transfer, possess and export Stinger missiles. Alwan and another former Iraq resident, Mohanad Shareef Hammadi, both of whom currently reside in Bowling Green, were charged there in May in a 23-count indictment returned by a federal grand jury. Each faces a potential sentence of life in prison if convicted of all the charges.

Alwan is one of only a handful of foreign nationals prosecuted in the US for alleged terrorism offenses [JURIST report] in a US-occupied territory such as Iraq or Afghanistan during wartime. Senate Minority Leader Mitch McConnell (R-KY) [official website] and others have also objected to holding the trials of Alwan and Hammadi in federal court, but they have cited security concerns and said they should be prosecuted before a military tribunal at Guantanamo Bay [JURIST news archive]. McConnell and others also have said the defendants do not deserve the full protection of the Bill of Rights accorded to civilian defendants. US Attorney General Eric Holder [official website] has consistently advocated [JURIST report] that terror suspects should be tried in civilian courts, though has not found support from Congress. In April, Holder announced that Khalid Sheikh Mohammed [BBC profile; JURIST news archive] and four other co-conspirators will be tried before a military commission [JURIST report] 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.




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DOJ asks to dismiss case seeking release of bin Laden photographs
Andrea Bottorff on September 28, 2011 2:07 PM ET

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[JURIST] The US Department of Justice (DOJ) [official website] on Monday filed a motion to dismiss a lawsuit calling for the release of photographs taken shortly after Osama bin Laden's death. Nonprofit organization Justice Watch [advocacy website] filed a complaint [text, PDF] against the Obama administration in May, claiming that the government violated the Freedom of Information Act (FOIA) [text] by refusing to release photographs of bin Laden's body. Obama announced in May that the US government would not release the photographs and now defends the decision, arguing in its motion that publicizing the graphic images would encourage violence against Americans [AP report] and would jeopardize classified military information. Other scholars agree that the photographs should remain undisclosed [JURIST op-ed]. Judicial Watch urged the administration to comply with the FOIA and promote transparency.

As founder and leader of al Qaeda [JURIST news archive], Bin Laden represents the highest profile terror target captured or killed by the US. Bin Laden was killed [JURIST report] in early May by American military forces in Pakistan. Critics have questioned the legality of the targeted killing, arguing that such an action violates international law [JURIST op-ed]. Bin Laden had topped the US list of Most Wanted Terrorists [FBI backgrounder] and is believed to have approved or helped plan many notorious terror attacks including those against New York and Washington DC on September 11, 2001, the 2000 bombing of the USS Cole [JURIST news archives], attacks on US embassies in Kenya and Tanzania [PBS backgrounder] in 1998 and the 1993 bombing of the World Trade Center.




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Rwanda genocide tribunal hears appeal of ex-army officer
Andrea Bottorff on September 28, 2011 12:31 PM ET

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[JURIST] The Appeals Chamber for the International Criminal Tribunal for Rwanda (ICTR) [official website] on Tuesday heard oral arguments [scheduling order, PDF] in the case of Aloys Ntabakuze [HJP profile], a former Rwandan army officer convicted of genocide and related crimes. Ntabakuze appealed his December 2008 conviction, in which the Trial Chamber sentenced him to life imprisonment [judgment, PDF]. Before a panel of five judges, Ntabakuze's lawyer requested an acquittal of the conviction [HNA report] because the prosecution lacked sufficient evidence and failed to provide adequate notice of the charges. The prosecution said that the indictment [text, PDF] provided Ntabakuze with adequate notice to defend his case. The Trial Chamber charged and convicted Ntabakuze in a case known as "Military I" that joined two other former army officers, Theoneste Bagosora and Anatole Nsengiyumva [HJP profiles]. The ICTR separated Ntabakuze's case from his co-defendants' after his lawyer failed to attend schedule oral arguments before the Appeals Chamber in March.

The former head of Ntabakuze's defense, US lawyer and JURIST Forum [website] contributor Peter Erlinder [JURIST news archive], grabbed international attention earlier this year before the ICTR removed him from the case [JURIST report] in April for failing to appear at Ntabakuze's scheduled oral arguments. Erlinder claimed that he did not travel to the tribunal because his life was in danger and that he was on a reported hit list consisting of the opponents of Rwandan President Paul Kagame [official website]. In October 2010, Rwandan Prosecutor General Martin Ngoga announced 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 [JURIST news archive] on one side. Erlinder returned to the US in June 2010 after spending 21 days in a Rwandan prison following his arrest [JURIST reports] on genocide denial charges.




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Rwanda genocide tribunal hears appeal of former official
Ashley Hileman on September 28, 2011 10:42 AM ET

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[JURIST] The Appeals Chamber of the International Criminal Tribunal for Rwanda (ICTR) [official website] on Tuesday heard oral arguments [press release] in the appeal of Dominique Ntawukulilyayo, the former Sub-Prefect of the southern region of Gisagara. The five judges composing the Appeals Chamber will decide whether the Trial Chamber committed a number of errors of law and fact, as alleged by Ntawukulilyayo, who seeks a reversal of his conviction, an acquittal and immediate release or, in the alternative, a reduction of his sentence. Ntawukulilyayo was indicted [case materials] in 2005 on charges of genocide, complicity in genocide and public incitement to commit genocide for falsely promising protection to ethnic minority Tutsi refugees, all of which occurred during the 1994 Rwandan genocide [HRW backgrounder; JURIST news archive]. In August 2010, the Trial Chamber found him guilty of genocide, and he was sentenced to 25 years in prison [JURIST report].

The ITCR continues to prosecute individuals for their involvement in the 1994 genocide. In June, the court convicted and sentenced [JURIST report] six individuals, including the first female to be charged with genocide and crimes against humanity. The six were charged with conspiracy to commit genocide, genocide, complicity in genocide, crimes against humanity including extermination, murder, persecution and other inhumane acts. The court also charged Pauline Nyiramasuhuko, former Minister of Women's Development and first female genocide criminal, and her son Arsene Shalom Ntahobali with rape. The court determined that the systematic killing of thousands of ethnic Tutsi authorized and facilitated by the individuals during the genocide amounted to crimes against humanity. Nyiramasuhuko was sentenced to life in prison based on the finding that she was guilty of seven of the 11 charges against her. The varying sentences for the other individuals range from 25 years in prison to life sentences. The six, who were arrested 16 years ago, will receive credit for time served.




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Federal appeals court stays release of Proposition 8 trial videos
Dan Taglioli on September 28, 2011 10:28 AM ET

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[JURIST] The US Court of Appeals for the Ninth Circuit [official website] on Monday extended a hold [order, PDF] on the release of the video recordings of last year's trial on the constitutionality of California's same-sex marriage ban. In response to an emergency motion by proponents of the ban, the court granted a stay of US District Court Chief Judge James Ware's September 19th ruling [JURIST report; order] that granted the unsealing of the Proposition 8 trial video recordings. The proponents do not contest Judge Vaughn Walker's original order placing the video recordings in the official trial record, only the unsealing of that record. As such, Ware rested his ruling solely on the common law right to inspect and copy public records and documents, which includes the trial record, of which the video recordings are an official part. The proponents claim that under US Supreme Court precedent, Local Rule 77-3 would have altogether prevented Walker from originally creating the recordings, but for his unequivocal representation at the time that they would not be publicly broadcast outside the courthouse. The proponents further claim that the Rule would have barred the placement of the video recordings in the official record but for Walker's sealing order. Common law rules are displaced by statute and other positive legislative and administrative enactments, and therefore, the proponents argue, now that the recordings exist and the trial record is sealed, Rule 77-3 abrogates the common law rationale for unsealing that portion of the trial record. Alternatively, the proponents claim that the official record of the trial proceedings is constituted in whole by court reporter's transcript, not the video recordings, and so the common law right of access cited by Judge Ware in his unsealing order does not apply.

At its beginning, Walker ordered the trial recorded exclusively for use in his chambers, permissible under Rule 77-3. The US Supreme Court had prevented the broadcast of the trial [JURIST report] after Judge Walker attempted to put the trial in a pilot program that would have broadcasted the proceedings to other courthouses. The order continued a temporary stay ordered by the Supreme Court the same day the trial began [JURIST reports]. Supporters of Proposition 8 had objected to the controversial decision to broadcast the trial proceedings, claiming it would result in witness intimidation. The YouTube broadcast of the case, Perry v. Schwarzenegger [case materials], was to be allowed under the experimental program approved by the US Court of Appeals for the Ninth Circuit [official website] that allows cameras in civil, non-jury cases. Proposition 8 was approved [JURIST report] by California voters in November 2008.




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Australia military to allow women in combat roles
Ashley Hileman on September 28, 2011 9:56 AM ET

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[JURIST] The Australian Minister for Defence announced Tuesday that women may now work in any position [press release] within the Australian Defence Force (ADF), including combat roles. Minister for Defence, Stephen Smith [official website] cited the "long and proud history" of women serving in the ADF as one of the reasons underlying the removal of the gender restrictions, which had prevented women from working in positions as Mine Clearance Divers and Ground Defence Officers, among others. A woman's suitability for a role will now be determined based on her ability to perform the duties required by the position rather than her gender. The policy should be completely implemented within five years. The Australian Defence Association [official website], a security think-tank, has voiced concerns [Guardian report] regarding the involvement of women in combat roles, fearing that due to the bio-mechanical differences between men and women, the latter would experience a disproportionately higher rate of causalities.

While a high number of women serve in the armed forces around the world, Australia is only the fourth country to allow them to serve on the front-lines without restrictions. Last January, a US Military panel recommended in its latest report that women should be allowed to serve on the front lines of combat [JURIST report]. The Military Leadership Diversity Commission (MLDC) [official website], composed of retired and current military leaders, said that women, who under current defense policy are prohibited from serving in direct line-of-fire combat, should be permitted to serve in combat and that integration of women into combat forces would have no ill effects. The commission recommended a "time-phased" approach to the implementation of new combat policies that would create additional career options for women that include "direct ground combat." The report addressed common concerns among military officials that inclusion of women in combat forces would present problems with unit cohesion and that the current policy is effective due to current warfare techniques. The commission's conclusion is that in Iraq and Afghanistan women have already been exposed to combat-related activities, with no negative effects, and that the current policy is discriminatory to women.




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Ukraine prosecutors seek 7-year sentence for ex-PM Tymoshenko
Julia Zebley on September 28, 2011 8:04 AM ET

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[JURIST] The trial of former Ukrainian prime minister Yulia Tymoshenko [personal website; JURIST news archive] resumed on Tuesday after a two-week recess [JURIST report] with prosecutors asking the court to sentence Tymoshenko to seven years in prison and bar her from holding public office. Tymoshenko is on trial on charges of abuse of power and corruption, with the prosecution arguing that she orchestrated a deal where Ukraine's national gas company would pay Russia excessively high prices for gas. Tymoshenko's team repeated that the charges and potential sentence are unjustifiable [press release]. Recently, the European Union (EU) [official website] has threatened to cancel free trade and association agreements [Reuters report] with the Ukraine if the trial of Tymoshenko is not conducted reasonably, including blocking the Ukraine from joining the EU. In response, Tymoshenko asked the EU to continue contracting with the Ukraine [press release] despite her trial: "I asked that they not make the decision to sign an association agreement dependent on what is happening now with my personal fate because the signing of an association agreement is a historical event, a historical step that must be taken, not to mark Yanukovych, but to once and for all cut off our path to the past."

Last month, former Ukrainian president Viktor Yushchenko [BBC backgrounder; JURIST news archive] testified against [JURIST report] Tymoshenko, his former prime minister. That same month, the Kiev Appeals Court refused Tymoshenko's appeal of her detention for contempt charges [JURIST reports]. Also in August, Judge Rodoin Kireyev rejected a request [JURIST report] from Tymoshenko to release her from prison. In July, the Security Service of Ukraine (SBU) [official website, in Ukrainian] announced that they are launching a criminal investigation [JURIST report] into United Energy Systems of Ukraine (UESU), an energy company at one time headed by Tymoshenko. In June, Tymoshenko filed a complaint [JURIST report] with the European Court of Human Rights alleging violations of the European Convention of Human Rights [text, PDF]. The complaint argued that the charges against Tymoshenko are politically engineered by current Ukrainian President Viktor Yanukovych [official website, in Ukrainian], Tymoshenko's political rival. Last May, prosecutors reopened a separate criminal investigation [JURIST report] into allegations that Tymoshenko attempted to bribe Supreme Court judges. Tymoshenko's government was dissolved in March 2010 after she narrowly lost the presidential election to Yanukovych. Tymoshenko had alleged that widespread voter fraud allowed Yanukovych to win the election.




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Supreme Court adds 7 cases to 2011 docket
Julia Zebley on September 28, 2011 7:14 AM ET

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[JURIST] The US Supreme Court [official website] on Monday granted certiorari [order list, PDF] in eight cases, consolidating two for oral arguments. In Filarsky v. Delia [docket; cert. petition, PDF], the court will consider whether a lawyer retained to work with government employees in conducting an internal affairs investigation is precluded from asserting qualified immunity solely because of his status as a "private" lawyer rather than a government employee. Firefighter Nicholas Delia brought suit against the city of Rialto, the Rialto Fire Department, several city officials and a private attorney, Steve Filarsky, for violating his constitutional rights during an internal affairs investigation. The US Court of Appeals for the Ninth Circuit ruled [opinion, PDF] that Delia's rights were violated but that the officials were entitled to qualified immunity because the right was not clearly established. The Ninth Circuit also found that the private attorney was not entitled to qualified immunity.

In Vartelas v. Holder [docket; cert. petition], the court will determine whether Rosenberg v. Fleuti [opinion text], should be applied to plaintiff Panagis Vartelas instead of current immigration law that repeals the law settled in Fleuti. Rosenberg v. Fleuti held that a permanent legal resident can make "innocent, casual, and brief" trips abroad without being denied reentry. But this interpreted law was changed by 8 USC § 1101(a)(13)(C)(v) [text], which holds that a permanent resident can be denied reentry if he has committed a crime of "moral turpitude" in the past. Vartelas pleaded guilty to a crime before the law was ratified and then left the US briefly and was denied reentry. The US Court of Appeals for the Second Circuit held [opinion text] that Vartelas was not entitled to immigration review and the law could be applied retroactively and supersedes the Fleuti doctrine.

In Roberts v. Sea-Land Services [docket; cert. petition], the court will clarify when the period for compensation is under the Longshore and Harbor Workers' Compensation Act [text], which goes into effect after a worker is disabled on the job. The calculation for compensation is based on several factors, including the national average wage. Dana Roberts was disabled from a period between 2002 and 2005, but her claim was not adjudicated until 2007. She is arguing that the national average wage should be used from 2007, when the award was first decided, as opposed to 2002, when she was injured. The US Court of Appeals for the Ninth Circuit ruled [opinion, PDF] that Roberts misinterpreted the phrase "those newly awarded compensation during such period" and held that her compensation should be calculated based on the 2002 national average.

In Taniguchi v. Kan Pacific Saipan, Ltd. [docket; cert. petition, PDF], the court will decide if translating written documents is enough to be considered an "interpreter" under 28 USC § 1920 [text] for matters of compensation. The US Court of Appeals for the Ninth Circuit determined [opinion, PDF] that translating documents is acting as an interpreter under the law.

In Holder v. Gutierrez [docket; cert. petition, PDF] and Holder v. Sawyers [docket; cert. petition, PDF], the court will be considering questions on illegal immigrants who reside with lawful immigrants. Essentially, both cases concern whether the alien children of legal residents can have their parents' years in the country imputed to them for the purposes of obtaining citizenship. The US Court of Appeals for the Ninth Circuit held in Gutierrez and in Sawyers [opinions, PDF] that the Board of Immigration must review their deportation orders and consider their parents' years in lawful residence as well as if, as minors, they were residing with their legal immigrant parents.

In Wood v. Milyard [docket; cert. petition], the court will determine if the prosecution raising a statute of limitations argument in response to plaintiff's appeal is an error. Further, specific to this case, if the state's assurance to the plaintiff that they would not raise a statute of limitations argument is enough to bind them to not be able to raise it later in proceedings. The US Court of Appeals for the Tenth Circuit ruling [opinion text] barred Patrick Wood's petition for writ of habeas corpus based on its timeliness.

Finally, in US v. Home Concrete & Supply [docket; cert. petition, PDF], the court will look at what can activate an "extended six-year assessment" period for taxes. The case questions if an understatement of gross income attributable to an overstatement of property assets can trigger this period. A Department of Treasury regulation holds that it does, and the court will also examine if this regulation should have judicial deference. The US Court of Appeals for the Fourth Circuit ruled [opinion, PDF] that the assessment should not have been initiated, and that the Department of Treasury's regulation was not holding.




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Kashmir promises identification of recently uncovered bodies
Jennie Ryan on September 28, 2011 6:52 AM ET

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[JURIST] Kashmir's Chief Minister Omar Abdullah [personal website] announced on Tuesday that officials will carry out DNA tests on the thousands of bodies recently uncovered in unmarked graves in the country's northern region. Abdullah called for families of missing persons to provide DNA samples [BBC report] for testing. The announcement comes after Amnesty International (AI) [advocacy website] called on leaders in the disputed region of Kashmir and Jammu to form an independent panel to take steps to identify bodies [press release, PDF]. Last month, more than 2,000 unidentified bodies were found in mass and single graves in the India-controlled region of the disputed territory by the State Human Rights Commission (SHRC) [official website]. The SHRC has called for an investigation into the identities of the remains, but, according to AI, their calls have been ignored.
It is ... imperative that [members of the legislative assembly] call upon the government to ensure that sufficient resources are provided on an urgent basis for such identification by an independent body. The state government must also ensure that all past and current allegations of enforced disappearances are promptly, thoroughly, independently and impartially investigated and that, where there is sufficient evidence, anyone suspected of responsibility for such crimes is prosecuted in proceedings which meet international fair trial standards.
An additional 574 bodies were found, but those have been identified by local residents.

In May, a report [text, PDF] released by AI alleged that hundreds of people are being held without charge [JURIST report] or trial in Kashmir and Jammu. AI reported that India's Public Safety Act (PSA) [text] is being used to detain people despite the absence of sufficient evidence for a trial. Over the last decade, between 8,000 and 20,000 people have been detained through the PSA, including 322 between January and September 2010. The PSA only applies to Kashmir and Jammu, a state that has been rife with unrest since it became part of India [JURIST report] in the middle of the twentieth century. Kashmir and Jammu, which is officially part of India, has been disputed between Pakistan and India since 1947. Claims by both Pakistan and India to the territory have resulted in several conflicts in the region, particularly the Indo-Pakistan wars of 1947-1948 and 1965. In addition, there was a large show of military force by both nations in the region in 2002 that caused international alarm because both nations have nuclear weapons. India has sought to stifle unrest and a burgeoning separatist movement in the region by detaining human rights and political activists.




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Federal court hears challenge to drug screening welfare recipients
Sarah Posner on September 27, 2011 2:10 PM ET

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[JURIST] A judge for the US District Court for the Middle District of Florida [official website] on Monday began reviewing the lawsuit challenging a Florida state law requiring drug testing before welfare applicants can receive benefits. Judge Mary Scriven heard arguments [ACLU press release] Monday on both the constitutionality of the drug testing law and whether plaintiff, Luis Lebron, could represent a class. The judge granted the Florida Department of Children and Families a two-week extension [AP report] to challenge a motion on whether Lebron's lawsuit can represent all Florida welfare applicants. The lawsuit was filed [JURIST report] earlier this month on behalf of a class led by Lebron, a 35-year-old Orlando resident, Navy veteran and full time University of Central Florida student who applied for temporary cash assistance to help support his four-year-old son. The American Civil Liberties Union of Florida (ACLUFL) [advocacy website] filed the federal class action lawsuit [complaint, PDF; press release] seeking to enjoin implementation of the drug testing law.

In effect since July 1, the new law [Fla Stat 414.0652 text] was signed by Governor Rick Scott [official website] at the end of May and requires applicants for welfare benefits under the Temporary Assistance for Needy Families (TANF) [official website] program to submit to and fund a urinalysis for substance screening. Individuals who pass receive reimbursement for the cost of the test, and those who fail lose their TANF benefits for one year. The ACLU complaint notes that the Supreme Court has held that suspicionless drug testing by the government is an unreasonable search that violates the Fourth Amendment, the only exceptions being for substantial public safety concerns and students in the public school system. TANF is a federal block grant program passed under 1996 welfare reform legislation aimed at turning welfare into a temporary assistance program. In June, the ACLUFL filed suit [JURIST report] challenging Scott's executive order mandating state agencies to enact pre-employment drug screening for all prospective employees and provide for random drug testing of all current agency employees regardless of classification.




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Blagojevich sentencing delayed indefinitely
Jennie Ryan on September 27, 2011 11:44 AM ET

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[JURIST] A judge in the US District Court for the Northern District of Illinois [official website] on Monday indefinitely delayed the sentencing of former Illinois governor Rod Blagojevich [personal website; JURIST news archive]. Blagojevich was scheduled to be sentenced on October 6 after he was convicted [JURIST report] in June on multiple counts of corruption. US District Court Judge James Zagel gave no reason for the delay, but the date of sentencing was set to coincide with the start of the trial of Springfield power broker William Cellini. The Cellini case is the last major trial stemming from investigations into the former governor's administration. According to Blagojevich's attorney, Blagojevich has no objection to the delay, and it is likely he will be sentenced in mid-October or early November. Blagojevich can appeal his conviction to the US Court of Appeals for the Seventh Circuit [official website].

Blagojevich was previously found guilty [JURIST report] last year of making false statements to the FBI, but the jury remained deadlocked on 23 additional charges. The prosecutors dropped some of the charges [JURIST report] to simplify the case for retrial including charges for racketeering. Last September, lawyers for Blagojevich asked the judge to throw out the sole conviction [JURIST report], stating that the government failed to meet its required burden of proof and that cross-examinations by the defense were plagued by "obstructionist" objections [Chicago Tribune report], which the court continuously sustained. In January 2009, the Illinois State Senate voted unanimously [JURIST report] to convict Blagojevich of abuse of power and remove him from office. Blagojevich and his former chief of staff John Harris were initially arrested [JURIST report] in December 2008.




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Rhode Island school board grants illegal immigrants in-state tuition
Alexandra Malatesta on September 27, 2011 11:12 AM ET

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[JURIST] The Rhode Island Board of Governors for Higher Education [official website] voted on Monday to grant in-state college tuition rates at Rhode Island state institutions to children whose parents immigrated to the US illegally. The decision is seen by some as a stepping stone [GoLocalProv report] in the broader context of the contentious immigration debate [JURIST news archive] with proponents arguing that in-state tuition is an act of social justice in order to give all children access their "fundamental right" to an education, and opponents such as the Rhode Island Tea Party [party website] arguing that tuition discounts encourage their parents' illegal actions and will significantly increase taxes. Children of illegal immigrants who attended school in Rhode Island for at least three years will pay the $9,824.00 tuition rate, as opposed to the out-of-state tuition rate of $25,912. The unanimous decision will take effect in 2012.

The Rhode Island decision is one of many immigration issues currently pending across the country. In June, the US Supreme Court [official website] denied certiorari [order list, PDF] in Martinez v. Regents of the University of California [docket], thereby rejecting a challenge to California's policy [JURIST report] of granting in-state tuition for state colleges and universities to illegal immigrants who graduated from California high schools. Last year, the California Supreme Court [official website] held [opinion, PDF; JURIST report] that the state's policy did not conflict with federal law because a student's high school graduation, not his or her residency, formed the basis for granting in-state tuition. Most students who take advantage of this rule are enrolled in community colleges [LAT report].




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Obama administration clears path for Supreme Court to rule on health care mandate
Alexandra Malatesta on September 27, 2011 10:37 AM ET

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[JURIST] The Obama administration on Monday declined to seek en banc review by the full US Court of Appeals for the Eleventh Circuit [official websites] of its August decision striking down the individual mandate provision [JURIST report] of the health care reform law [JURIST backgrounder], clearing the path for an appeal to the US Supreme Court [official website]. The decision could mean that the Supreme Court will hear the case during its 2011 term and that a ruling could come as early as June. The court is expected to agree to hear the case because there is a circuit split on the issue. The US Court of Appeals for the Sixth Circuit [official website] upheld the law in June, and that ruling was appealed [JURIST reports] to the Supreme Court by the Thomas More Law Center (TMLC) [advocacy website]. JURIST Guest Columnist Steven Schwinn of the John Marshall Law School in Chicago recently argued that the Eleventh Circuit ignored the text, history and jurisprudence of the Constitution in its recent health care ruling, which will likely not be adopted by the Supreme Court [JURIST op-ed] given recent rulings on congressional Commerce Clause authority.

Other courts have also weighed in on the constitutionality of the individual mandate provision. Earlier this month, a judge for the US District Court for the Middle District of Pennsylvania [official website] ruled that the individual mandate is unconstitutional [JURIST report]. Also in September, the US Court of Appeals for the Fourth Circuit [official website] dismissed two lawsuits [JURIST report] challenging the mandate's constitutionality. In Virginia v. Sebelius, the court held that Virginia lacked standing to sue and vacated the judgment of the district court [JURIST report], remanding the case with instructions to dismiss the suit for lack of subject-matter jurisdiction. In Liberty University v. Geithner, the court ruled that the suit was filed prematurely, also vacating the lower court ruling [JURIST report], which had declared the act constitutional.




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Rights group urges Thailand to stop targeting civilians
Sarah Posner on September 27, 2011 10:34 AM ET

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[JURIST] Amnesty International (AI) [advocacy website] urged Thailand on Tuesday to stop the insurgents' deliberate targeting of civilians [press release] in Southern Thailand. The pressure on Thailand comes after AI released a report [text, PDF] detailing the deliberate attacks against civilians which they claim amount to war crimes. During the past eight years of insurgency aggression, nearly 5,000 civilians have been killed and thousands more injured in the four southern provinces of Thailand. The insurgency has been organizing the Malays, nearly all Muslim, against the predominantly Buddhist Thai state. The AI report is based on information gathered from interviews with witnesses and survivors, relatives and friends of victims. AI reported:
Common Article 3 of the four Geneva Conventions clearly provides that all parties to an armed conflict must apply certain minimum standards in treating all "persons taking no active part in the hostilities". Targeting such persons for attack is prohibited at all times. The insurgents in southern Thailand, through widespread killings of persons taking no active part in hostilities, have violated Common Article 3. They have committed—and are continuing to commit—what amount to acts aimed at spreading terror among the civilian population, and which constitute war crimes.
AI called on insurgent groups in Southern Thailand to immediately cease their attacks targeting civilians and publicly commit to preventing such attacks.

Thailand has faced other criticism for its human rights record. In August, Thailand received criticism from UN Special Rapporteur on human trafficking Joy Ngozi Ezeilo [official profile], who urged the government of Thailand to improve measures to combat human trafficking [JURIST report], as well as protect the rights of migrant workers. The trafficking trade in Thailand is predominantly used for sexual and labor exploitation, with child trafficking especially rampant. In May, Human Rights Watch (HRW) [advocacy website] urged Thailand's government to investigate crimes [JURIST report] allegedly committed by both government officials and protesters during 2010's violent political protests [JURIST news archive].




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Libya to abolish state security courts
Drew Singer on September 27, 2011 8:29 AM ET

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[JURIST] Libyan transitional justice minister Mohammed al-Alagi said Monday that he plans to abolish the nation's security prosecution and court and the state security appeals court. The state security court system had been used to jail thousands of dissidents and people who opposed the regime of Muammar Gaddafi [BBC profile; JURIST news archive]. Speaking at a news conference, al-Alagi said that he had already approved the measure [AP report]. The proposal now awaits approval by the National Transitional Council (NTC) [official website], which currently runs the nation.

Earlier this month, NTC members assured world leaders that Libya will be a society of tolerance and respect for the rule of law [JURIST report]. During a meeting [BBC report] in Paris chaired by French President Nicolas Sarkozy, NTC leader Mustafa Abdel Jalil [BBC profiles] vowed to administer elections and draft a new constitution for Libya within 18 months. Sarkozy said that the airstrikes in Libya would continue until Gaddafi is caught by interim officials




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Mubarak trial put on hold amid claims of judicial bias
Drew Singer on September 27, 2011 7:05 AM ET

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[JURIST] The trial of former Egyptian president Hosni Mubarak [Al Jazeera profile; JURIST news archive] was suspended Monday until next month amid bias claims. Lawyers for the families of the anti-Mubarak protesters who were killed argued to the Cairo Appeals Court [Al Jazeera backgrounder] that Judge Ahmed Refaat was overseeing the case in an arbitrary manner [UPI Report]. Refaat suspended the trial until October 30, but if a new judge is put on the trial, it would start over. Mubarak is on trial for murder, attempted killing of protesters and other charges related to general abuse of power [Al Jazeera report] stemming from his response to pro-democracy demonstrations in Egypt [JURIST news archive] earlier this year. Mubarak's sons, Gamal and Alaa, are also on trial for corruption charges.

Mubarak's trial began on August 3 [JURIST report] with Mubarak and his sons pleading not guilty to all charges. Rifaat decided last month to end live TV broadcasts [JURIST report] of subsequent proceedings amid protests from the families of victims and praise from several courtroom lawyers who opposed the broadcasts. Officials chose a new location for Mubarak's trial for security reasons after reporting [JURIST reports] that the trial would take place at a convention center in downtown Cairo. In July, an Egyptian criminal court postponed the trial [JURIST report] of former interior minister Habib el-Adly, who also faces murder charges in relation to the pro-democracy demonstrations, so it would coincide with Mubarak's trial. In March, a commission of Arab and Egyptian human rights groups accused Mubarak [JURIST report] and the police of murdering protesters during the demonstrations in Egypt. Mubarak could face the death penalty [JURIST report] if convicted of ordering attacks on protesters. Amnesty International [advocacy website] reported that at least 840 people were killed [JURIST report] and more than 6,000 injured during the Egyptian protests.




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Serbia approves WWII property restitution law
John Paul Putney on September 26, 2011 5:28 PM ET

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[JURIST] The National Assembly of the Republic of Serbia [official website] approved a restitution law that provides for compensation or the return of property confiscated by communist authorities following World War II. The bill, passed by an overwhelming majority [AP report], is part of a larger property rights reform package that is key to Serbia's bid to join the European Union (EU) [official website], which is up for review next month. The law invites property owners or their heirs to register by 2014 in order to claim confiscated property or receive compensation which will be funded by a 15-year bond [Bloomberg report] not to exceed two billion euros. The International Monetary Fund (IMF) [official website], which approved the maximum bond amount, is expected to announce a one billion "precautionary" loan program with Serbia to avoid economic instability.

As part of its bid to join the EU, the Serbian government has increased efforts to combat organized crime and corruption as well as handing over alleged perpetrators of war crimes to the tribunal in The Hague. In July, Serbian authorities arrested [JURIST report] Goran Hadzic [ICTY backgrounder], the last fugitive of the original 161 sought for war crimes by the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website]. Serbian President Boris Tadic announced the arrest [B92 report], stating that Serbia has fulfilled its obligations to The Hague and was not harboring Hadzic at any time. The Special Court in Belgrade deemed Hadzic fit for extradition [B92 report] immediately after the arrest. In May, the Serbia War Crimes Court Tuesday rejected an appeal [JURIST report] by alleged war criminal Ratko Mladic [ICTY backgrounder; JURIST news archive] of the decision that he is medically fit for extradition shortly after his arrest [JURIST reports] earlier that month.




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Ireland clergy abuse amounts to torture: rights group
John Paul Putney on September 26, 2011 4:26 PM ET

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[JURIST] The abuse of Irish children by members of the clergy, revealed by four state-sponsored reports, included acts that amounted to torture [press release], Amnesty International [advocacy website] said Monday. Aimed at why the abuse occurred, the report, titled In Plain Sight [text, PDF], calls attention to those who "turned a blind eye" to the abuse and "people in positions of power" who "ignored their responsibility to act." The report notes five major findings [text, DOC]:
  • No clear lines of responsibility make true accountability impossible. In the case of residential institutions, it wasn't that the system didn't work but rather that there was no system.
  • The law must protect and apply to all members of society equally. Despite the severity of the crimes revealed in the Ferns, Ryan, Murphy (Dublin) and Cloyne Reports, which range from physical assault to rape, very few perpetrators have been convicted.
  • Recognition of children's human rights must be strengthened. The sexual abuse in the diocesan reports, and the sexual, physical and emotional abuse, the living conditions, and the neglect described in the Ryan Report, can be categorized as torture, and cruel, inhuman and degrading treatment under human rights law.
  • Public attitudes matter. Individual attitudes matter. The end of deference to powerful institutions and the taking of personal responsibility on behalf of all members of society will initiate some of the changes that are necessary to prevent the occurrence of human rights abuses.
  • The State must operate on behalf of the people, not on behalf of interest groups. While Taoiseach Enda Kenny's recent criticism of the Vatican suggests a less deferential attitude to the Catholic Church, transparency in the operations of all arms of the State is necessary to prevent interest groups from exerting undue influence.
Colm O'Gorman, a survivor of clergy abuse and the current executive director of Amnesty International Ireland, called the abuse "perhaps the greatest human rights failure in the history of the state."

The Vatican has come under intense pressure related to allegations of clergy child sex abuse and cover-ups by local bishops and Vatican officials. The release of In Plain Sight was lauded [press release] by the Center for Constitutional Rights (CCR) [advocacy website] which petitioned the International Criminal Court [official website] prosecutor earlier this month to investigate the Vatican for crimes against humanity [JURIST report]. Calling In Plain Sight "another important step in the journey towards holding Vatican officials accountable", CCR pledged to "continue to gather information and evidence of additional crimes of rape and sexual violence and associated cover ups by the Catholic Church." In February 2010, the Vatican released church procedures [JURIST report] for handling alleged cases of sexual abuse by priests, instructing, "Civil law concerning reporting of crimes to the appropriate authorities should always be followed." The "Guide to Understanding Basic CDF Procedures concerning Sexual Abuse Allegations" summarizes the procedures governing investigations by the Congregation for the Doctrine of the Faith (CDF) [official profile] into allegations of sex abuse by clergy members. The CDF guidelines provide for interim measures meant to ensure the safety of others during civil authorities' investigations or legal proceedings. The guidelines also outline a multi-tiered system of enforcement and appeals, including local bishops, the CDF, and the Pope himself. Since 2007, in the US alone, the Church has settled more than 500 cases [JURIST news archive] of abuse for over $900 million.




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Kuwait Cabinet approves draft anti-corruption law
Jennie Ryan on September 26, 2011 11:12 AM ET

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[JURIST] The Kuwait Cabinet on Sunday approved a draft anti-corruption law meant to combat the country's growing business corruption troubles. The law imposes penalties of up to seven years in prison [Reuters report] for a number of offenses related to money laundering and financial disclosure, including manipulation of public tenders and auctions, bribery, counterfeiting, forgery and graft. The passage of the draft law comes after the International Monetary Fund (IMF) [official website] released an assessment [text, PDF] early this month concerning the country's anti-money laundering laws. The IMF criticized the existing system of laws for weakness in financial monitoring and outlined a series of recommendations including improvement of the countries suspicious transaction reporting requirements. The draft law goes next to Amir Sheikh Sabah Al-Ahmad Al-Jaber Al-Sabah [official website] and then parliament for approval. The passage of this anti-corruption law comes after a crowd of nearly 2,000 protested corruption in oil-exports in the countries capital last week.

The move to change the law marks a departure from the country's previous response to protests and demonstrations in the region. In July, Human Rights Watch (HRW) [advocacy website] urged Kuwait to immediately release [JURIST report] two men being detained for posting messages on the Internet criticizing Middle East rulers. HRW reported that in June authorities detained and investigated Nasser Abul [Twitter feed, in Arabic] for threatening state security using Twitter and Lawrence al-Rashidi for posting a YouTube video criticizing Kuwait leader. His Tweets support the protestors demonstrations against Bahrain King Hamad bin Isa al-Khalifa [official profile].




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Hezbollah leader could get US military trial: report
Jennie Ryan on September 26, 2011 10:20 AM ET

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[JURIST] US counter-terrorism officials have indicated that the administration of President Barack Obama [official website; JURIST news archive] is considering trying the former leader of Hezbollah [JURIST news archive] in a military commission [JURIST news archive] on US soil, the Associated Press reported [AP report] Monday. According to anonymous officials, the Obama administration is considering the controversial move because they believe that the best place to try Ali Mussa Daqduq is a US military base. Daqduq was captured in Iraq in 2007, where he is currently being held. He is linked to a raid in Karbala, Iraq, which killed four American soldiers and is believed to have ties to Iran. If a US military tribunal hears the case, it will mark the first time a military commission has been held on US soil since 9/11 [JURIST backgrounder]. If no decision is made by the end of the year, Daqduq must be transferred to the custody of Iraqi officials according to a 2008 agreement between the US and Bagdad. Some have suggested that Daqduq be tried at Guantanamo Bay [JURIST news archive] as an alternative to a trial in the US.

The location of the trials of foreign terror suspects detained by the US has been a controversial issue. In July, the US brought Somali terror suspect Ahmed Abdulkadir Warsame to the US to face a civil trial in New York [JURIST report], a decision that has sparked harsh criticism from members of Congress who argued that terror suspects should be held at Guantanamo Bay. Obama ordered military commissions of detainees to resume [JURIST report] in March after he initially suspended new charges at Guantanamo Bay shortly after taking office in 2009. US Attorney General Eric Holder [official website] has consistently advocated [JURIST report] that terror suspects should be tried in civilian courts despite finding little support from Congress. In April, Holder announced that Khalid Sheikh Mohammed [BBC profile; JURIST news archive] and four other co-conspirators will be tried before a military commission [JURIST report] 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.




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Scotland prosecutors ask Libya NTC for Lockerbie information
Alexandra Malatesta on September 26, 2011 10:08 AM ET

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[JURIST] Scottish prosecutors asked Libya's National Transitional Council (NTC) [official website] on Monday for any evidence, witnesses or assistance they can provide in tracking down those involved in the Lockerbie bombing [BBC backgrounder]. The request follows the Scottish Crown's recent defense of its decision to release [JURIST report] convicted Lockerbie bomber, Abdelbaset Ali Mohmed Al Megrahi [BBC profile] on humanitarian grounds due to his terminal prostate cancer diagnosis. Megrahi, convicted of murdering 270 people in 2001 after blowing up Pan Am Flight 103, was received as a "hero" upon returning to Libya from prison and still lives two years later [Reuters report]. Convinced that Megrahi did not act alone [MSNBC article], prosecutors have also suggested investigating the possible involvement of former Libyan leader Muammar Gaddafi [BBC profile, JURIST news archive]. The NTC has yet to respond to the Crown's request.

In August 2010, Scottish Labour Party officials called for the publication of all medical evidence related to the release [JURIST report] of al-Megrahi. The demand came one year after al Megrahi was released [JURIST report] from prison on compassionate grounds because doctors predicted he only had three months to live. Despite the publication of a report leading to the decision, the Labour party said that all medical opinions leading to the decision and the names of the doctors who authored them should also be released [BBC report]. Responding to criticism of his decision to release al Megrahi, Scottish Justice Secretary Kenny MacAskill [official website] claimed he acted in good faith when authorizing the release, denying that there was an arrangement [Telegraph report] for al Megrahi to drop his appeal in return for his release. Al Megrahi returned to his native Libya, where he is still living, and experts have suggested that he could continue living for several more years [AP report]. Al Megrahi's release was controversial, with both US officials and the Scottish Parliament [JURIST reports] condemning it. Last year, US lawmakers called for an investigation [JURIST report] into the role that oil company British Petroleum (BP) may have played in al Megrahi's release.

4:20 PM ET ~ Libya's interim justice minister said Monday that the Lockerbie case is "closed" [Reuters report]




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Rights groups demand end to Cameroon homosexual persecution
Alexandra Malatesta on September 26, 2011 9:24 AM ET

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[JURIST] Five human rights groups sent a letter Monday to Cameroon [BBC backgrounder; JURIST news archive] President Paul Biya, urging him to end persecution against gays and lesbians [press release] and repeal laws that criminalize homosexual conduct [UNHCR backgrounder]. The groups, Amnesty International (AI), Human Rights Watch, International Gay and Lesbian Human Rights Commission, L'Association pour la Defense des Droits des Homosexuel(le)s and Alternatives Cameroun [advocacy websites], demanded the end of detentions, torture, arrests and harassment based on citizens' perceived gender identity and sexual orientation. The letter follows earlier requests to decriminalize [JURIST report] the same-sex laws in accordance with recommendations [report, DOC] issued by the UN Human Rights Committee (UNHRC) [official website], which expressed concern that the laws impede the effectiveness of HIV and AIDS prevention programs.

According to a 2009 AI report [text, PDF; abstract], the Cameroon government participated in and encouraged unlawful executions, torture and other human rights violations [JURIST report]. The report alleges that such violations have been taking place for more than 10 years and may increase with the current global economic crisis and continued political unrest. According to the report, the actions by many governmental officials violate national law as well as the International Covenant on Civil and Political Rights (ICCPR) [text]. The ICCPR guarantees the right of equal treatment and the right of equal protection under the law, without discrimination. In 1994, the UNHRC held in Toonen v. Australia [case materials] that sexual orientation is included in the protections against discrimination in the ICCPR.




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UN Security Council urges end to Yemen violence
Maureen Cosgrove on September 25, 2011 2:40 PM ET

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[JURIST] The UN Security Council [official website] on Sunday called on Yemen to end ongoing violence [press release] related to attacks on unarmed, peaceful protestors and urged the nation to comply with international law. Ambassador Nawaf Salam of Lebanon, on behalf of the 15 Security Council member nations, advised Yemen officials to proceed with "an inclusive, orderly and Yemeni-led process of political transition" that adheres to an initiative supported by the Gulf Cooperation Council [official website]. The member nations expressed their concern for the decline in economic and humanitarian stability in the country. The council also indicated that threats from al Qaeda in parts of Yemen have contributed to the country's "worsening security situation." The announcement comes in response to recent violence that has resulted in the deaths of at least 49 people [Al Jazeera report] since Yemen President Ali Abdullah Saleh [official website, in Arabic; JURIST news archive] returned from a three month absence on Friday.

A delegation from the UN Office of the High Commissioner for Human Rights (OHCHR) [official website] released a report [text, PDF] earlier this month announcing a humanitarian crisis in Yemen [press release] that requires immediate intervention [JURIST report]. Rights groups have also criticized Yemen for its handling of pro-democracy protests that have persisted since February. Amnesty International (AI) [advocacy website] released a report [text; PDF] in April urging the international community to pressure Yemeni authorities to investigate protestor deaths [JURIST report]. Just days earlier, the OHCHR urged the Yemeni government [JURIST report] to stop using force against peaceful protesters. The Yemeni Parliament enacted several emergency measures [JURIST report] in March at the request of Saleh in an effort to end anti-government protests. Saleh, who agreed to step down in April [JURIST report], and his party, the General People's Congress (GPC), had 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. 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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Libya leaders meet to discuss formation of interim government
Ashley Hileman on September 25, 2011 12:04 PM ET

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[JURIST] Libyan leaders, including National Transitional Council (NTC) [official website] Chairman Mustafa Abdel Jalil [BBC profile], met Sunday to begin a discussion regarding the formation of the country's interim government. During the meeting, which is set to last three days, the leaders are expected to work out the details of the new government [CNN report] and the positions therein, which will include a premier, vice premier and 22 ministers. Meanwhile, the NTC's troops continue to scour the country looking for ex-colonel Muammar Gaddafi [BBC profile; JURIST news archive], who has publicly announced his refusal to surrender. Leaders of the international community who helped oust Gaddafi have pledged economic and military support [Bloomberg report] to the new Libyan administration.

Libyan leaders continue to make progress within the international community. Last week, the new ruling regime vowed to investigate allegations of human rights abuses after the World Bank [official website] recognized the NTC [JURIST report] as the official government of Libya. The NTC was responding to an Amnesty International (AI) [advocacy website] report alleging that both sides [JURIST report] of the Libya conflict [JURIST backgrounder] are responsible for human rights abuses, and warning the NTC to act quickly to investigate these allegations. The World Bank said it would engage the NTC as the official Libya government [press release] and is helping to rebuild the economy and infrastructure of the nation. Additionally, during a meeting earlier this month chaired by French President Nicholas Sarkozy [BBC profile], the NTC assured world leaders [JURIST report] that Libya will be a society of tolerance and respect for the rule of law.




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House passes bill requiring analysis of proposed EPA regulations
Ashley Hileman on September 25, 2011 11:26 AM ET

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[JURIST] The US House of Representatives [official website] on Friday voted 249-169 [roll call vote] to pass a bill [HR 2401 materials] that would effectively block a number of broad regulations aimed at reducing emissions. The Transparency in Regulatory Analysis of Impacts on the Nation Act 2011 [text, PDF] would require the formation of a committee, chaired by the Secretary of Commerce, to perform "analyses of the cumulative and incremental impacts of certain rules and actions" of the Environmental Protection Agency (EPA) [official website]. In requiring the committee to analyze the impact on the economy of decisions made by the EPA, the Act would delay the implementation [Washington Post report] of many EPA regulations, including one which attempts to limit the discharge of certain toxins into the air and another which would limit the emissions of power plants in states that have been found to cause significant pollution in their neighboring states. To become law, the legislation still needs to pass in the Senate and receive approval from US President Barak Obama.

The possible effects to the economy of environmental regulations has made their passage and implementation difficult as of late. Earlier this month, Obama requested the withdrawal of national smog standards [JURIST report] proposed by the EPA. The draft Ozone National Ambient Air Quality Standards [materials] would have reduced the amount of smog emissions to between 0.060 and 0.070 parts per million (ppm) from the previous 0.075 ppm. The EPA estimates that these changes would help reduce the effects of climate change and improve public health, saving the US between $13 billion and $100 billion in health care costs. The stricter smog standards, proposed by the EPA in January 2010 [JURIST report], would have replaced the Bush administration's broader 2008 national smog regulations [text], complying with scientific recommendations. In his statement, Obama recognized recent efforts to improve environmental protection, but emphasized the need to trim down regulations in light of the economic downturn.




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Former Pennsylvania judge sentenced to 17 1/2 years in federal prison
Maureen Cosgrove on September 25, 2011 10:25 AM ET

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[JURIST] Former Pennsylvania Judge Michael Conahan, 59, was sentenced on Friday to 17 and a half years in federal prison for his involvement in a juvenile sentencing scandal [JURIST news archive]. Conahan appeared in a federal courtroom [WSJ report] at the US District Court for the Middle District of Pennsylvania [official website] and apologized to the legal community, the public and the youths incarcerated throughout the "kids for cash" scandal, during which Conahan sent juveniles to for-profit jails in exchange for money. Conahan, the former president judge of the Luzerne County Court of Common Pleas [official website], pleaded guilty to racketeering and conspiracy charges [Citizens Voice report] for accepting more than $2.6 million in return for sentencing teenagers to two private juvenile detention facilities. A district court judge accepted a plea agreement [text, PDF] in July 2010.

Mark Ciavarella, also a former Pennsylvania judge implicated in the juvenile sentencing scandal, was sentenced to 28 years in prison [JURIST report] in August. A jury in the US District Court for the Middle District of Pennsylvania reached a split decision [JURIST report] in Ciavarella's April corruption trial, convicting him of 12 counts, including racketeering, money laundering and conspiracy, and acquitting him of 27 counts, including extortion. Judge Edwin Kosik had previously rejected [JURIST report] joint plea agreements [text, PDF] from Conahan and Ciavarella, finding that plea bargaining to honest services fraud and tax evasion charges demonstrated that the men did not accept responsibility and that the disbarment and 87-month prison sentences were too lenient [JURIST op-ed]. Conahan and Ciavarella were indicted in September 2009, following a withdrawal of the guilty pleas they entered [JURIST reports] in February 2009.




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Mubarak trial suspended after former ally testifies
Julia Zebley on September 24, 2011 12:21 PM ET

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[JURIST] The trial of former Egyptian President Hosni Mubarak [Al Jazeera profile] was paused on Saturday, after lawyers representing victims and their families filed motions to change both the location and judge for the trial. That morning, confidante to Mubarak and his former defense minister, Field Marshal Tantawi testified against Mubarak in a closed-session, but left early and refused to be cross-examined by counsel for the victims. Due to the closed-session, nothing has been revealed about the testimony [AP report], nor how the lawyers' actions stem from it. Mubarak is on trial for murder, attempted killing of protesters and other charges related to general abuse of power [Al Jazeera report] stemming from his response to pro-democracy demonstrations in Egypt [JURIST news archive] earlier this year. Mubarak's sons, Gamal and Alaa, are also on trial for corruption charges. Mubarak's trial began on August 3 [JURIST report] with Mubarak and his sons pleading not guilty to all charges. The trial will resume on October 30 if a higher court finds no merit in the lawyers' filings. If upheld, the filings could delay the trial indefinitely.

Violence broke out in the Egyptian court [JURIST report] earlier this week, when the court resumed for a third session. Outside the court, demonstrators tussled with police, with several injuries reported. Presiding Judge Ahmed Rifaat last month decided to end live TV broadcasts [JURIST report] of subsequent proceedings amid protests from the families of victims and praise from several courtroom lawyers who opposed the broadcasts. In July, officials chose a new location for Mubarak's trial for security reasons after reporting [JURIST reports] that the trial would take place in downtown Cairo. Also in July, an Egyptian criminal court postponed the trial [JURIST report] of former interior minister Habib el-Adly, who also faces murder charges in relation to the pro-democracy demonstrations, so it would coincide with Mubarak's trial. In March, a commission of Arab and Egyptian human rights groups accused Mubarak [JURIST report] and the police of murdering protesters during the demonstrations in Egypt. Mubarak could face the death penalty [JURIST report] if convicted of ordering attacks on protesters. Amnesty International (AI) [advocacy website] reported that at least 840 people were killed [JURIST report] and more than 6,000 injured during the Egyptian protests.




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ETA prisoners call for end to separatist violence in Spain
Julia Zebley on September 24, 2011 11:36 AM ET

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[JURIST] The Collective of Basque Political Prisoners (EPPK) on Friday released a statement [text, in Spanish] supporting the 2010 Guernica agreement [PDF, in Spanish] and called for the Euzkadi Ta Askatasuna (ETA) [GlobalSecurity backgrounder] to commit to a permanent truce. The EPPK is comprised of 700 Spanish and French prisoners, of varying levels of leadership in the ETA. The group called for focus on achieving freedom through democratic means and said the ceasefire would be "the first step on the path to amnesty." Although supporting the new agreement, the EPPK criticized the government's treatment of them, stating that the "prison system was built to destroy our political and human identity." The Guernica agreement is the greatest recognition of a separate Basque state that the Spanish government has ever agreed to, as well as a recognition of repatriation and other rights for ETA prisoners. Despite the EPPK's statement, the Spanish government responded by calling for the ETA to disband [Reuters report], although recognizing the prisoners' efforts as a significant step.

The Spanish government continues to actively pursue charges against ETA. Last week, the Spanish National Court sentenced a former Basque separatist to 10 years in prison [JURIST report] for terrorism and trying to resurrect a banned political wing of ETA. In March 2010, the court sentenced a former Basque separatist party leader to two years in prison for promoting terrorism [JURIST report]. Earlier that week, the court accused [JURIST report] the Venezuelan government of aiding ETA in a plot to assassinate members of the Colombian government in Spain. In February 2010, the Interior Ministry of Spain said [JURIST report] that it took into custody the suspected ETA leader, along with two other people who are believed to be senior members of the group. Spanish Judge Fernando Grande-Marlaska ruled [JURIST report] a month earlier that ETA had tried three times to assassinate former Spanish prime minister Jose Maria Aznar in 2001 but had failed. In June 2009, the European Court of Human Rights (ECHR) upheld [JURIST report] Spain's ban of Basque political groups Batasuna and Herri Batasuna for their alleged ties to ETA.




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US soldier sentenced for murder of Afghanistan civilians
Erin Bock on September 24, 2011 11:21 AM ET

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[JURIST] A soldier with the US Army [official website] was sentenced on Friday for his role in murdering an unarmed teenage Afghan civilian. Private Andrew Holmes was sentenced to seven years in prison [AFP report] as part of a plea deal that he agreed to on Thursday. Holmes pleaded guilty [JURIST report] to shooting the civilian, but pleaded not guilty to previous charges of premeditated murder and conspiracy to commit murder. Holmes also pleaded guilty to one count each of possessing a finger bone of the victim and using marijuana. As part of the deal, Holmes will receive 499 days of time served and will be dishonorably discharged from the US Army. Holmes is the third soldier to strike a plea deal of the five charged with murder as part of a plot contrived with fellow soldiers to kill Afghan civilians, which took place between January and May of last year in Afghanistan's Kandahar province. Holmes has alleged that his co-defendant, Specialist Jeremy Morlock [JURIST news archive], ordered soldiers to fire at villagers. Morlock pleaded guilty [JURIST report] in March to three counts of murder, as well as one count each of assault, conspiracy, obstructing justice and illegal drug use in exchange for a maximum sentence of 24 years in prison.

Investigations into the 5th Stryker Brigade have led to additional charges for lesser crimes against seven other soldiers. In May, US Army prosecutors charged Staff Sgt. David Bram with solicitation to commit premeditated murder [JURIST report], failure to report crimes including murder, planting evidence near the body of an Afghan national, unlawfully engaging in murder scenario conversations with subordinates and aggravated assault with a dangerous weapon in related to the January 2010 murder plot. Staff Sgt. Robert Stevens pleaded guilty [JURIST report] in December to shooting two unarmed Afghan farmers following a plea agreement that will allow him to remain in the military after serving a nine-month sentence and testifying against other soldiers accused of terrifying civilians. A military investigation revealed that soldiers from the brigade had been plotting since 2009 to kill unarmed Afghans and stage them to look like casualties of combat. The probe into 12 soldiers regarding the civilian deaths began in May 2010 [JURIST report].




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Federal judge issues order blocking enforcement of Idaho abortion law
Erin Bock on September 24, 2011 10:56 AM ET

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[JURIST] A judge in the US District Court for the District of Idaho [official website] issued a temporary order on Friday preventing the state of Idaho from enforcing a law that prohibits a woman from terminating her own pregnancy. Jennie Linn McCormack was charged [Reuters report] earlier this year under a 1972 Idaho state law that makes it a felony to end one's own pregnancy. McCormack had used a combination of FDA-approved abortion pills from an online source to terminate her pregnancy. After the case was dismissed for lack of evidence, McCormack filed suit in August seeking to prevent prosecution of other women under the law and challenging the state's newly-enacted "fetal pain" statute [JURIST reports]. McCormack claimed that both laws pose unconstitutional barriers to abortion. US District Judge B. Lynn Winmill issued a temporary order [Reuters report] preventing the state from enforcing the 1972 law. However, Judge Winmill also found that McCormack lacked standing to seek an order blocking enforcement of the new "fetal pain" statute because she was no longer pregnant and could not show that she was harmed by the new law. McCormack's attorney stated that he would attempt to establish standing at a future hearing.

Idaho's "fetal pain" statute, passed in April, makes it a felony to terminate a pregnancy after 20 weeks based on controversial science indicating a fetus may feel pain after 20 weeks of development. State legislatures across the country have been implementing measures to restrict abortions, and challenges to these laws are appearing in many states. In August, a federal judge blocked several provisions of a new Texas abortion law [JURIST report] that places restrictions on the procedure and requires a doctor to show a sonogram to and play the sounds of the fetal heartbeat for a woman prior to performing an abortion. Earlier in August, the Arizona Court of Appeals [official website] ended a two-year injunction [JURIST report] on portions of a law that restricted abortion practices, suggesting that the lower judge had applied "strict scrutiny" in error rather than an "undue burden" test. Also in August, the American Civil Liberties Union (ACLU) [advocacy website] filed a lawsuit challenging a Kansas law [JURIST report] that prohibits insurance companies from including coverage for abortion in their comprehensive plans.




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Obama to allow states to opt out of No Child Left Behind
Michael Haggerson on September 23, 2011 3:51 PM ET

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[JURIST] US President Barack Obama [official website] announced changes to the No Child Left Behind Act (NCLB) [official website; JURIST news archive] on Friday, allowing states to opt-out of the program [video; transcript]. The new program [fact sheet, PDF; press release] gives states flexibility in how they design their curriculum, provides schools relief from the "failing" designation and provides increased flexibility in how education funding is distributed. If states choose to opt into the new flexible standards, they are required to adopt new standards to promote college and career readiness and "set basic guidelines for teacher and principal evaluation and support systems." In explaining why the changes to the NCLB were necessary, Obama stated:
And I want to say the goals behind No Child Left Behind were admirable, and President Bush deserves credit for that. Higher standards are the right goal. Accountability is the right goal. Closing the achievement gap is the right goal. And we've got to stay focused on those goals. But experience has taught us that, in its implementation, No Child Left Behind had some serious flaws that are hurting our children instead of helping them. Teachers too often are being forced to teach to the test. Subjects like history and science have been squeezed out. And in order to avoid having their schools labeled as failures, some states, perversely, have actually had to lower their standards in a race to the bottom instead of a Race to the Top. They don't want to get penalized? Let's make sure that the standards are so low that we're not going to be seen failing to meet them. That makes no sense.
Some Republicans are questioning the president's ability to make such changes however. John Cline (R-MN) [official website], Chairman of the House Committee on Education and the Workforce [official website], questioned [press release] whether the Secretary of Education "has the authority to issue waivers of any statutory or regulatory requirement to state educational agencies and school districts." Obama stated that he is acting because Congress has failed to fix the NCLB and children can no longer afford to wait any longer.

In June 2010 the US Supreme Court [official website] denied a petition for certiorari [JURIST report] in Pontiac School District v. Duncan, which challenged whether the NCLB could impose requirements upon school districts without providing funding. As a result of the denial for certiorari, the case was dismissed. At the time, the Obama administration argued against granting certiorari [brief, PDF].




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Rights group urges Haiti authorities to prosecute Duvalier
Sarah Posner on September 23, 2011 12:23 PM ET

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[JURIST] Amnesty International (AI) [advocacy website] called on Haitian authorities Thursday to prosecute [press release] former president Jean-Claude Duvalier [BBC backgrounder] for crimes against humanity that occurred under his leadership between 1971 and 1986. The pressure on Haiti comes after AI released a report [text, PDF] detailing human rights abuses that occurred under Duvalier's government. When Duvalier returned to Haiti in January 2011, Haitian authorities indicted him for embezzlement, theft of public funds and crimes against humanity committed during his presidency. According to a Special Adviser at Amnesty International, there is enough evidence to prosecute Duvalier for detentions, torture, deaths in custody, killings and disappearances that took place under his leadership. AI reported:
Torture and other cruel, inhuman and degrading treatment is a violation of international law. During Jean-Claude Duvalier's presidency, torture was used widely and systematically to extract confessions, to punish and to instil [sic] fear. Most of the information collected by Amnesty International concerning the torture and ill-treatment of detainees comes from the survivors themselves, or in the form of testimonies from fellow prisoners, who saw the marks and injuries of torture on the victims' bodies.
The AI report recommends that Haiti apologize and respect the rights of the victims, conduct a thorough, effective and impartial investigation into human rights abuses, apply jurisprudence from national and international courts, and ratify human rights instruments.

In July, the UN Deputy High Commissioner for Human Rights [official website] Kyung-wha Kang [official profile] spoke on the importance of Haiti improving its human rights record [JURIST report], including trying Duvalier. Stressing the importance of rebuilding after Haiti's recent earthquake, Kang said reform must create a new focus on human rights and equality in the nation. Duvalier, also known as "Baby Doc," is the son of former Haitian leader Francois Duvalier, or "Papa Doc," whom he succeeded as leader in 1971. Following a tumultuous reign, which included accusations of thousands of murders by his regime [HRW report], Duvalier fled Haiti in 1986 and had since resided in France, until his return to Haiti in January. AI announced [JURIST report] that Haitian authorities will investigate crimes committed against humanity allegedly committed under the rule of Duvalier during the 1970s and 80s.




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US federal claims court hears gay military members discharge pay suit
Maureen Cosgrove on September 23, 2011 11:50 AM ET

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[JURIST] The US Court of Federal Claims [official website] on Thursday heard arguments [ACLU press release] regarding a class action lawsuit challenging a government policy that halves severance pay of service members who have been honorably discharged for being gay. The American Civil Liberties Union (ACLU) [advocacy website] filed the lawsuit [JURIST report] in November 2010 on behalf of all service members involuntarily discharged in the last six years who were otherwise eligible to receive full separation pay, but instead received only half as a result of the separation pay policy. The ACLU argues that the policy is discriminatory and unconstitutional, while the US Department of Justice (DOJ) [official website] maintains that Defense Secretary Leon Panetta [official profile], and not the courts, has sole discretion to determine severance pay allocation. ACLU Lesbian Gay Bisexual and Transgender Project staff attorney Joshua Block said gay military members deserve equal benefits:
The government is too embarrassed to defend the constitutionality of its policy in open court, so it is inventing new reasons to deny these service members justice. These veterans served their country honorably and deserve the full recognition and benefits that are afforded to other service members. The sums they seek are small to the military, but make a huge difference when readjusting to civilian life.
Judge Christine Odell Cook Miller indicated that she would likely permit the case to continue [AP report] and will issue her official ruling on the government's motion to dismiss before October 15.

The DOJ asked the court to dismiss the lawsuit just two days after the repeal [JURIST report] of Don't Ask, Don't Tell (DADT) [10 USC § 654; JURIST news archive] officially took effect [memo, PDF]. With the repeal of the law, the military can no longer prevent gays and lesbians from serving openly among its ranks. The separation pay policy, unlike DADT, can be changed without congressional approval. The repeal of DADT took effect as scheduled despite opposition from some. Four days before the repeal was scheduled to go into effect, two Republican Congressmen sent a letter to Panetta asking to delay the repeal [JURIST report] of DADT. Earlier this month, lawyers for the DOJ asked the US Court of Appeals for the Ninth Circuit [official website] to overturn a ruling that the DADT policy is a violation of service members' constitutional rights, arguing that the impendency of repeal renders the original court decision moot. In July, the Ninth Circuit ruled that DADT would remain partially in effect [JURIST report] during the 60 days prior to its newly-scheduled repeal. The court effectively reiterated its order issued [JURIST report] the previous week, in which it reinstated DADT but explicitly ordered the military to refrain from investigating, penalizing or discharging any of its members as originally provided for under the policy. Hours earlier, Obama, Panetta and the Joint Chiefs of Staff certified DADT's repeal [JURIST report], scheduling the policy to end on September 20. Obama signed the bill to repeal DADT [JURIST report] in December. The Don't Ask, Don't Tell Repeal Act of 2010 [HR 2965 materials] was approved in the Senate in December after being passed [JURIST reports] by the House of Representatives the week before. Since the enactment of DADT in 1993, approximately 13,000 servicemen and women have been discharged from the armed forces as a result of the policy.




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UN rights office urges halt to Syria violence
Sarah Posner on September 23, 2011 11:39 AM ET

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[JURIST] The UN Office of the High Commissioner on Human Rights (OHCHR) [official website] on Friday urged the Syrian government to end their violent crackdown [press release] on protesters and permit an independent investigation into the current situation in the country. Ravina Shamdasani, spokesperson for the OHCHR, said "We are extremely alarmed by ongoing reports of the increasingly brutal crackdown by Syrian authorities against protestors in Syria. Prominent human rights defenders, inside and outside the country, are reported to have been targeted. We are also concerned by reports of the targeting and attacking of families and sympathizers of the protestors by security forces." Shamdasani cited a recent incident in which an 18-year-old woman was tortured and died while in custody after being kidnapped by members of the security forces. Shamdasani again emphasized that it is critical for the UN Security Council to refer the situation in Syria to the International Criminal Court (ICC) [official websites].

Earlier this month, UN High Commissioner for Human Rights Navi Pillay [official profile] said that at least 2,600 people have been killed in Syria in the crackdown [JURIST report] on anti-government protesters in the country. Last month, Pillay called on the UN Security Council to refer Syria to the ICC to investigate the violent suppression of anti-government protests [JURIST report]. Pillay's remarks came after the Fact-finding Mission in Syria published its 22-page report concluding that Syrian government forces cracking down on the opposition may be committing crimes against humanity [JURIST report].




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Second US soldier pleads guilty to murdering Afghanistan civilians
Maureen Cosgrove on September 23, 2011 10:56 AM ET

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[JURIST] Private Andrew Holmes, 21, pleaded guilty on Thursday to murdering a teenage Afghan civilian that he knew was unarmed. Holmes is the second soldier to plead guilty [Reuters report] of five who have been charged with murder as part of a plot contrived with fellow soldiers to kill Afghan civilians which took place between January and May of last year in Afghanistan's Kandahar province. Holmes told the court-martial, held at Joint Base Lewis-McChord [official website], that Specialist Jeremy Morlock [JURIST news archive], a co-defendant, "was up to no good" when he ordered soldiers to fire at the villagers. Morlock pleaded guilty [JURIST report] in March to three counts of murder, as well as one count each of assault, conspiracy, obstructing justice and illegal drug use in exchange for a maximum sentence of 24 years in prison. In a plea agreement between Army prosecutors and the private, Holmes admitted to pulling the trigger, but pleaded not guilty [Seattle Times report] to previous charges of premeditated murder and conspiracy to commit murder. Holmes also pleaded guilty to one count each of possessing a finger bone and using marijuana. Holmes is likely to be sentenced later Friday.

Investigations into the 5th Stryker Brigade have led to additional charges for lesser crimes against seven other soldiers. In May, US Army prosecutors charged Staff Sgt. David Bram with solicitation to commit premeditated murder [JURIST report], failure to report crimes including murder, planting evidence near the body of an Afghan national, unlawfully engaging in murder scenario conversations with subordinates and aggravated assault with a dangerous weapon in related to the January 2010 murder plot. Staff Sgt. Robert Stevens pleaded guilty [JURIST report] in December to shooting two unarmed Afghan farmers following a plea agreement that will allow him to remain in the military after serving a nine-month sentence and testifying against other soldiers accused of terrifying civilians. A military investigation revealed that soldiers from the brigade had been plotting since 2009 to kill unarmed Afghans and stage them to look like casualties of combat. The probe into 12 soldiers regarding the civilian deaths began in May 2010 [JURIST report]. These charges are the latest in a number of incidents involving US soldiers in both Iraq and Afghanistan. In April 2010, a military appeals court reversed the conviction [JURIST report] of US Marine Sgt. Lawrence Hutchins III for the 2006 killing of an Iraqi civilian, citing lack of a fair trial. Hutchins was serving an 11-year sentence, reduced from 15 years [JURIST report], for his role in the April 2006 kidnapping and murder of an Iraqi civilian. In December 2009, former soldier Steven Green appealed his conviction [JURIST report] for his role in the rape and murder of a 14-year old Iraqi girl. Green was sentenced to five consecutive life terms [JURIST report] in September 2009.




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DHS advisors recommend changes to controversial immigrant screening process
Hillary Stemple on September 23, 2011 10:01 AM ET

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[JURIST] The US Department of Homeland Security Advisory Council (HSAC) [official website] approved a report [text, PDF] on Thursday detailing concerns with the controversial Secure Communities Program [materials], a federal enforcement program that partners local law enforcement with federal immigration authorities. A subcommittee of HSAC was formed in June by the Secretary of Homeland Security Janet Napolitano [official website] and was asked to consider how US Immigration and Customs Enforcement (ICE) [official website] could improve the program. The subcommittee was specifically asked to address concerns relating to the use of racial profiling and how "to best focus on individuals who pose a true public safety or national security threat." The report states that there was strong agreement among the committee members that ICE should continue taking enforcement action against serious criminal offenders who are subject to deportation, but that ICE enforcement policy surrounding removal of minor offenders or those who have never been convicted of a crime continues causing confusion. This confusion, they maintain, has led to concerns surrounding the impact of the Secure Communities Program on community police procedures. The report states that ICE must clarify their goals with regards to the program, and accurately provide this information to participating jurisdictions. The committee also recommends that ICE implement "systematic mechanisms to ensure that Secure Communities adheres to its stated enforcement objective of prioritizing those who pose a risk to public safety or national security." Additionally, ICE is directed to improve the transparency of the program and to clarify that "individuals who are convicted of or charged with misdemeanors or other minor offenses are not top enforcement priorities unless there are other indicia that they pose a serious risk to public safety or national security." The Department of Homeland Security (DHS) [official website] is also urged to take steps to improve the program, including strengthening remedies for civil rights violations.

The Secure Communities Program, as well as other aspects of the US immigration detention policy, have been heavily criticized by constitutional and immigration rights groups. In June, the Center for Constitutional Rights (CCR) [advocacy website] and a coalition of other rights groups rejected [JURIST report] the changes announced by ICE to the program. The groups claimed Secure Communities undermines public safety, invites racial profiling and pulls non-citizens into what they call a "dangerous" system of detention and deportation. In March, the Inter-American Commission on Human Rights (IACHR) [official website] released a report [JURIST report] arguing that US immigration enforcement agencies are overly reliant on a flawed detention system. The IACHR investigated six immigrant detention centers based throughout Arizona and Texas. The report expressed concern over increased use of detention by the US government, citing a doubling in detention of non-citizens by ICE. It criticized the US government for viewing detention as a necessity and not as an exception in its enforcement. IACHR also found the average 30 day detentions troubling, arguing that it is likely to increase as backlogs of immigration cases increase. The report also criticized the lack of a genuine civil detention system and use of disproportionately restrictive penal and punitive measures during the detention period.




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Uganda appeals court grants ex-LRA rebel amnesty
Hillary Stemple on September 23, 2011 9:23 AM ET

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[JURIST] The Uganda Constitutional Court [official website] ruled [materials] Thursday that former Lord's Resistance Army (LRA) [JURIST news archive] rebel Thomas Kwoyelo is entitled to amnesty under the country's Amnesty Act of 2000 [text]. Kwoyelo was charged [JURIST report] in July by the International Crimes Division (ICD) [official website] of the High Court of Uganda on 53 counts of willful killing, hostage taking, destruction of property and causing injury that took place during the country's civil war [BBC backgrounder]. The Constitutional Court stated that because Kwoyelo had renounced rebel activities [All Africa report] he was entitled to amnesty, like everyone else who renounced the activities and were granted amnesty under the act. The court indicated that they were not interfering with the independence of the Amnesty Commission and the Directorate of Public Prosecutions because they still have the ability to prosecute those who refuse to renounce rebellion. They also emphasized that the act did not immunize all wrongdoers from prosecution. The prosecution in the case had argued that the Amnesty Act should be declared unconstitutional [RNW report] in order to end impunity for those who perpetrated violence during the civil war. Lawyers for Kwoyelo stated that the court's ruling was about fairness and equal treatment under the act. Kwoyelo, who was taken into custody [HRW backgrounder] in March 2009, joined the LRA in 1987 and allegedly participated in war crimes from 1992 through 2005 during his tenure as "colonel" of the rebel group. Kwoyelo has denied committing the crimes.

The International Criminal Court (ICC) [official website] said in May 2008 that it was investigating possible new war crimes [JURIST report] committed by the LRA in recent attacks on Ugandan villages. In March 2008, the ICC said that arrest warrants issued by the ICC for LRA leaders [JURIST report] remain in effect, despite requests from Uganda that they be withdrawn. The four ICC-issued warrants were executed in 2005 and include LRA leader Joseph Kony and LRA senior member Vincent Otti [BBC profiles]. In 2007, Otti was executed by rebels [BBC report], though official confirmation of his death was delayed until January amid fears that it would disrupt peace talks. Kony, who remains in hiding, is wanted for orchestrating the killing of thousands of civilians and the enslavement of thousands more children over two decades of conflict. The government has said that Kony is willing to face trial at home [JURIST report] but not at the ICC. Uganda established the ICD [JURIST report] in February 2008 to try the suspected war crimes perpetrators. A fifth arrest warrant was initially issued for Raska Lukwiya but was later withdrawn after a July 2007 ICC pre-trial chamber decision.




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EU judge places senior Kosovo politician under house arrest on suspicion of war crimes
John Paul Putney on September 23, 2011 8:13 AM ET

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[JURIST] An EU judge on Thursday placed senior Kosovo politician and parliamentarian Fatmir Limaj under house arrest for one month while awaiting trial on charges of war crimes stemming from the 1998-99 Kosovo war with Serbia [BBC backgrounder; JURIST news archive], acting on a request by prosecutors for the European Rule of Law Mission in Kosovo (EULEX) [official website]. Limaj allegedly ordered two captured Serb policemen executed and tortured another [AP report] Serbian captive in 1999. Limaj is also under investigation for embezzling funds while serving as transport minister. An influential figure in the ruling Democratic Party of Kosovo (PDK) [official website, in Albanian], Limaj was excluded from a cabinet position [VOA report] following international pressure not to include corrupt officials, but was elected into the Kosovo parliament. Limaj is an ex-member of the Kosovo Liberation Army (KLA) and is viewed as a liberator [Reuters report] by ethnic Albanians. In 2005, Limaj was acquitted of similar charges by a war crimes tribunal in The Hague because of insufficient evidence. The start date of the current trial remains unclear.

EULEX has been investigating war crimes [JURIST report] since December 2008. Earlier this month, EULEX charged 10 former members of the KLA [JURIST report], including Fatmir Limaj, with war crimes for their actions during the 1998-1999 war in Kosovo. In May 2010, EU police arrested a former member of the KLA for suspected war crimes violations [JURIST report]. A case came to trial [JURIST report] in March 2009, resulting in a guilty verdict against a Kosovo Albanian for charges of murder, attempted murder and grievous bodily harm. The trial of two Serbian defendants was derailed [JURIST report] that month by hundreds of Serbian protesters and postponed indefinitely. Earlier this year, the Council of Europe and the UN Security Council [JURIST reports] considered allegations of organ trafficking by the KLA during the war. Kosovo controversially seceded from Serbia [JURIST report] in February 2008 and its new constitution went into effect [JURIST report] later that year.




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France court issues first fines for wearing full-face veils in public
John Paul Putney on September 23, 2011 7:09 AM ET

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[JURIST] A French court in Meaux on Thursday fined two Muslim women for violating the controversial French law [materials, in French] that bans wearing full-face veils in public, including the Islamic burqa [JURIST news archive] and niqab [BBC backgrounder; JURIST news archive]. Although more than 90 women have been cited by police [Guardian report], the fines are the first time a French court has enforced the law [WSJ report] passed in April. Hind Ahmas, 32, and Najate Nait Ali, 36, were stopped in May near the town hall [AFP report] in Meaux where they were carrying an birthday cake for the mayor, Jean-Francios Cope—vocal advocate of the "burqa ban" and head of the ruling rightwing UMP party [official website, in French]—on the occasion on his birthday. The pair has indicated they will appeal to France's highest court, the Court of Cassation [official website, in French], and, if necessary, to the European Court of Human Rights (ECHR) [official website], which would have implications across the continent. The judge issuing the fine is expected to publish his ruling explaining the decision.

Since France passed its law in April, several other European countries have proposed or passed similar legislation. In August, an Italian parliamentary commission approved a draft law [JURIST report] that bans women from wearing full-face veils in public. In July, Belgium implemented a law banning women from wearing the burqa [JURIST report] in public, with violators facing the possibility of fines or up to seven days in jail. A French Muslim couple living in the UK filed a challenge [JURIST report] in June in the ECHR over the French ban on full face coverings. Also in June, a Spanish court upheld a city ban on veils in municipal buildings for identification and security purposes. Last October, the French Constitutional Council ruled that the ban conforms with the Constitution [JURIST report]. Also in October, Dutch politician Geert Wilders said that the Netherlands will ban the burqa [JURIST report] as part of the government's plan to form a minority coalition. In August 2010, 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 2010, 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 two abstaining.




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New York court: Port Authority not liable for 1993 World Trade Center bombing
Michael Haggerson on September 22, 2011 2:53 PM ET

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[JURIST] The New York Court of Appeals [official website] ruled Thursday that the Port Authority of New York and New Jersey [official website] was not liable [text, PDF] for the 1993 bombing of the World Trade Center (WTC), finding governmental immunity. The plaintiffs argued that the operation of the parking garage was more akin to a proprietary, rather than governmental, function and thus qualified immunity should not apply. The court disagreed, stating that "[a]ny failure to secure the parking garage against terrorist attack predominantly derives from a failed allocation of police resources and thus" is considered to be a governmental function. The court explained:
Despite the injurious results of the instant terrorist attack, the policy of the governmental immunity doctrine seeks to promote the proactive, deliberate, and informed security procedures that were developed here. For example, the Port Authority solicited numerous expert opinions on the security risks and measures to be considered before allocating its police resources. While the Port Authority's decision-making could have proceeded along different acceptable paths of action, in this case, it reached a reasoned discretionary conclusion to heighten security in sectors of the WTC considered more susceptible to harmful attack. This is the type of assiduous behavior that governmental agencies should be encouraged to undertake in rendering informed decisions that involve the balancing of burdens and risks, competing interests, and allocation of resources. To hold otherwise would create a disincentive for governmental agencies to investigate these types of security threats. And to expose the Port Authority to liability because in the clarity of hindsight its discretionary determinations resulted in harm would engender a chilling effect on government and dissuade public entities from investigating security threats and exercising their discretion, especially in a time when the risk of terrorist attack is more apparent than ever before.
This decision overturns the 2005 jury decision [JURIST report] allocating 68 percent of the fault to the Port Authority for the terrorist attack.

The 1993 bombing of the WTC by Islamic radicals, led by Ramzi Yousef [IPT backgrounder], killed six and injured 1,000 through a car bomb placed in the basement parking garage of the WTC. Five men were captured and sentenced to life in prison for the attack. After the bombing, 648 plaintiffs filed 174 negligence actions against the Port Authority for "alleged breach of its proprietary duty to maintain its premises in a reasonably safe condition." Negligence was assessed against the Port Authority after documents revealed that the WTC garage had been ignoring safety fears since 1984. The Port Authority police superintendent, at the time, stated the parking areas "[we]re accessible to the public and are highly susceptible to car bombings." Yousef's uncle is Khalid Shaikh Mohammed (KSM) [GlobalSecurity backgrounder; JURIST news archive], the alleged mastermind behind the 9/11 terrorist attacks [JURIST news archive]. KSM was captured in 2003 in Rawalpindi, Pakistan. In April US Attorney General Eric Holder [official website] announced that KSM and four others would be tried before a military commission [JURIST report] for their role in the 9/11 terrorist attacks.




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Cambodia genocide tribunal to separate trials of Khmer Rouge leaders
Andrea Bottorff on September 22, 2011 2:35 PM ET

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[JURIST] The UN-backed Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website] on Thursday ordered the trials of four alleged Khmer Rouge [BBC backgrounder] leaders be split into a series of smaller trials [order, PDF]. The ECCC said that the separation of trials will allow the tribunal to deliberate more quickly [press release] in the case [materials] against the four elderly defendants. The first trial will focus on the beginning two phases of population movement and allegations of crimes against humanity, including murder, persecution not on religious grounds and forced disappearances associated with the first phases of population movement. Subsequent trials will focus on the third phase of population movement, genocide, persecution based on religious grounds and violation of the Geneva Conventions of 1949 [ICRC backgrounder]. The ECCC supported its decision, saying:
Separation of proceedings will enable the Chamber to issue a verdict following a shortened trial, safeguarding the fundamental interest of victims in achieving meaningful and timely justice, and the right of [the defendants] to an expeditious trial.
The ECCC based its decision on an internal rule adopted earlier this year, which allows the tribunal to separate cases into smaller trials.

Earlier this month, the ECCC concluded three days of hearings [JURIST report] in the Cambodian capital Phnom Penh to determine whether two of the four senior Khmer Rouge leaders were fit to stand trial on accusations of genocide and other war crimes. A court-appointed expert indicated that 79-year-old Ieng Thirith [ECCC backgrounder], the sister-in-law of Khmer Rouge leader Pol Pot, suffered from dementia and memory loss and needed additional psychiatric assessment [AFP report]. The expert found no major concerns with 84-year-old "Brother Number Two" Nuon Chea [ECCC backgrounder], though Chea contested the assessment. In May, a panel in the ECCC denied a motion for pretrial release [JURIST report] by former Khmer Rouge official Ieng Sary [ECCC backgrounder], 85, who served as deputy foreign minister under the regime during its reign in Cambodia from 1975-1979. Ieng's co-defendants Nuon Chea, Ieng Thirith and Khieu Samphan [ECCC backgrounder] have all challenged pretrial custody unsuccessfully.




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Libya ex-PM arrested in Tunisia
Michael Haggerson on September 22, 2011 2:21 PM ET

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[JURIST] Former Libyan prime minister Al-Baghdadi Ali Al-Mahmoudi [BBC backgrounder] was arrested Wednesday in Tamaghza, Tunisia, near the border with Algeria, according to Tunisian authorities. Al-Mahmoudi was sentenced to six months in prison for illegal entering the country [BBC report]. Al-Mahmoudi served as prime minister under Muammar Gaddafi [JURIST news archive] until Gaddafi was ousted during the Libya conflict [JURIST backgrounder] which began last February. Many senior officials of the Gaddafi regime remain at large [JURIST report], including Gaddafi himself, his son Saif al-Islam Gaddafi and his brother-in-law Abdullah al-Sanussi.

Last month Al-Mahmoudi requested that the UN create a "high-level commission" to investigate alleged human rights abuses [JURIST report] by the North Atlantic Treaty Organization (NATO) [official website]. Although NATO was mandated by the UN to use force in order to stop Muammar Gaddafi from fomenting violence upon Libyan citizens, the campaign has allegedly gone beyond the scope of protecting civilians and recently led to the death of 85 civilians in one night after NATO forces bombed a residential area supposedly housing a rebel command center. In June, the UN Human Rights Council (UNHRC) [official website] decided to extend a mandate to an investigative panel instructing it to continue its investigation of human rights abuses in Libya, after it published a 92-page report [JURIST reports]. The report claims Libyan authorities have committed crimes against humanity such as acts constituting murder, imprisonment and other severe deprivations of physical liberties, torture, forced disappearances and rape "as part of a widespread or systematic attack against a civilian population with knowledge of the attack."




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UK to pay compensation to 'Bloody Sunday' victims
Dan Taglioli on September 22, 2011 1:38 PM ET

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[JURIST] The British government announced Thursday that it would pay reparations to the families of those killed or wounded in Northern Ireland's 1972 Bloody Sunday, the day on which members of the British Army's Parachute Regiment opened fire on civil rights marchers in Londonderry. The shooting killed 13 Northern Ireland civilians and wounded 15. The UK Bloody Sunday Inquiry [official website] released an assessment [JURIST report] in June of last year concluding that the attack by the British forces was unjustified. As a result, the UK Ministry of Defence (MoD) [official website] says it has written the lawyers representing the families of the victims, acknowledging their pain and offering monetary compensation. The inquiry, launched in 1998 by former prime minister Tony Blair [Guardian backgrounder], concluded that British soldiers fired without warning on unarmed civilians during the illegal civil rights march taking place that day. The inquiry also found that the soldiers continued to shoot the civilians as they were fleeing the gunfire. During the original inquiry following the incident the military unit held that they were aiming at armed individuals who were allegedly Irish Republican Army [GlobalSecurity backgrounder] militants. This led the government to pay out only small amounts of compensation at the time. However the modern investigation concluded that the civilians were not armed and no soldiers had suffered injuries from return fire, and so additional compensation for the victims is warranted. Upon the release of the investigation findings current UK Prime Minister David Cameron [official website] apologized [transcript] for the soldiers' malfeasance, stating that although the atrocity happened almost 40 years ago, the victims and their families still deserved an apology from the current government for the mistakes of those in the past. The MoD has yet to determine the exact amount of the payments to be made, and several families have stated they will refuse to accept the compensation. The victims' families had originally requested the investigation in order that their loved ones would be exonerated from being labeled IRA bombers and gunmen, and to hold the British contingent responsible for the unjustified killings.

The Bloody Sunday inquiry is the longest and most expensive public investigation in British legal history. The government deposed more than 900 witnesses [JURIST report] in 432 days of testimony and took more than 1,500 written statements. The soldiers held responsible for the killings attempted to take action against the inquiry in 2004, arguing against the use of any standard below the criminal standard of proof because of the potential consequences facing them. Inquiry Chairman Lord Saville of Newdigate determined that the tribunal would not use a criminal standard of proof [JURIST report] to find if a soldier shot anyone without justification because the tribunal was merely investigating the circumstances surrounding the deaths and issuing a report. The investigation came to fruition after the Irish government in 1997 produced new evidence that cast doubts on the conduct of the original tribunal established at the time of the incident, which labeled the victims as bombers and gunmen.




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Federal appeals court dismisses torture cases against Abu Ghraib contractors
Andrea Bottorff on September 22, 2011 1:29 PM ET

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[JURIST] The US Court of Appeals for the Fourth Circuit [official website] on Wednesday dismissed two cases filed by former Iraqi detainees who claimed they had been tortured by civilian contractors at the Abu Ghraib prison [JURIST news archive] near Baghdad. The three-judge panel ruled 2-1 to dismiss both cases, filed against contractors CACI International Inc. and L-3 Services [opinions, PDF], holding that federal law protecting civilian contractors acting under the control of the US military in a combat situation preempted the plaintiffs' tort claims based in state law. Circuit Judge Paul Neimeyer wrote the opinions and emphasized the importance of federal interests in the case:
The potential liability under state law of military contractors for actions taken in connection with U.S. military operations overseas would similarly affect the availability and costs of using contract workers in conjunction with military operations. In this case, that uniquely federal interest was especially important in view of the recognized shortage of military personnel and the need for assistance in interrogating detainees at Abu Ghraib prison. Not only would potential tort liability against such contractors affect military costs and efficiencies and contractors' availability, it would also present the possibility that military commanders could be hauled into civilian courts for the purpose of evaluating and differentiating between military and contractor decisions. That effort could become extensive if contractor employees and the military worked side by side in questioning detainees under military control, as the complaint alleges in this case. Moreover, such interference with uniquely federal interests would be aggravated by the prison's location in the war zone. Finally, potential liability under state tort law would undermine the flexibility that military necessity requires in determining the methods for gathering intelligence.
Circuit Judge Robert King filed a dissenting opinion, arguing that the appellate court lacked jurisdiction to decide the issue of federal law preemption.

US military personnel have also been accused of torturing detainees at Abu Ghraib prison. Army Spc. Charles Graner [JURIST news archive], the convicted ringleader of abuses committed at the prison, was released [JURIST report] last month for good behavior after serving more than six-and-a-half years of his 10-year sentence. Graner was convicted [JURIST report] in 2005 of conspiracy, assault, maltreating prisoners, dereliction of duty and committing indecent acts and received the longest sentence of the six others involved in the abuses. In June, the US Department of Justice (DOJ) [official website] initiated a grand jury investigation [JURIST report] into the torture and death of a detainee at Abu Ghraib. Manadel Al-Jamadi was captured [JURIST report] by US Navy SEALs in 2003 and held in Abu Ghraib as a "ghost detainee," or unregistered prisoner, for his suspected involvement in the bombing of a Red Cross center in Baghdad that killed 12 people. The US military has never revealed the exact circumstances of his death, which was ruled a homicide [JURIST report]. Reports show he died while suspended by his wrists, which were handcuffed behind his back.




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Georgia executes Troy Anthony Davis after Supreme Court denies stay
Dan Taglioli on September 22, 2011 12:31 PM ET

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[JURIST] The state of Georgia executed Troy Anthony Davis [advocacy website; JURIST news archive] Wednesday night after his eleventh-hour appeal for clemency was denied [order, PDF] by the US Supreme Court. Davis was put to death by lethal injection, the three-drug cocktail that first put the condemned man in an induced coma through an administration of pentobarbital, followed by an injection of pancuronium bromide. Finally potassium chloride stopped his heart, and Davis was pronounced dead at 23:08 EST. From the time he was sentenced to death in 1991 Davis has maintained that he was wrongfully convicted of the murder of off-duty police officer Mark Allen MacPhail, the Savannah officer who was shot to death in 1989 in a parking lot while attempting to aid a homeless man who was being assaulted. Still proclaiming his innocence to the witnesses gathered around the execution chamber, Davis asked his family and friends to continue to search for truth in his case, which in the last decade has garnered significant support from advocacy groups around the world, in addition to high-profile individuals including former US president Jimmy Carter, Pope Benedict XVI and former FBI director William Sessions. Davis' prosecution relied heavily on the testimony of eyewitnesses, most of whom have recanted their testimony, and many of whom have signed affidavits swearing they were pressured or coerced by police, according to Amnesty International USA [advocacy website]. Additionally, nine individuals have signed affidavits implicating as the shooter another man who is also one of the two remaining witnesses who have not recanted their testimonies. Vigils and protests were held Wednesday night in the US and around the world.

Last year, Sara Totonchi [profile] of the Southern Center for Human Rights warned [JURIST comment] that the questions and doubts surrounding Davis' case would make his execution a travesty of justice. Her writing came a few weeks after the US District Court for the Southern District of Georgia [official website] denied [JURIST report] Davis' habeas corpus petition even though the presiding judge noted numerous problems with the evidence presented by the State of Georgia in securing Davis' conviction. The Supreme Court had instructed the district court to examine new findings of fact in the case after taking the rare step of granting [JURIST report] Davis' original writ of habeas corpus [cert. petition, PDF], despite Davis' exhaustion of his appeals under the Antiterrorism and Effective Death Penalty Act [text]. A few weeks after the court had declined to grant certiorari [JURIST report] in 2008, the US Court of Appeals for the Eleventh Circuit [official website] granted a provisional stay of execution [JURIST report], directing the parties to address through briefs whether Davis could meet the stringent requirements of federal law that would permit him to file a second habeas corpus petition for federal review of his case. In 2006, the American Bar Association [association website] recommended a moratorium on the death penalty in Georgia and in Alabama [JURIST reports] after an ABA panel study identified numerous flaws in the states' criminal justice systems that it claimed greatly compromised the fair administration of capital punishment. More recently a federal judge ruled [JURIST report] in June that Florida's death penalty procedures are unconstitutional, a holding Richard Dieter [profile] of the Death Penalty Information Center says highlights the arbitrariness of the death penalty [JURIST comment] and the problems with a state exacting an irreversible punishment. Additionally, in March of this year Illinois Governor Pat Quinn [official website] signed into law a bill that abolished the death penalty [JURIST report] in that state.




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Liberia prison conditions condemned by human rights group
Dan Taglioli on September 21, 2011 3:23 PM ET

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[JURIST] The Liberian government must work to improve its generally poor prison conditions, according to an Amnesty International (AI) [advocacy website] assessment [report, PDF; press release] released Wednesday. "Good Intentions Are Not Enough: The Struggle to Reform Liberia's Prisons" describes an otherwise determined government's failure to cope with the needs of its prisoners as it struggles to rebuild a country wracked by a 14-year civil war. In 2010 and 2011 AI delegates visited four of Liberia's 15 prison facilities, some more than once. From these observations AI concluded that prisoner conditions are so poor that they violate basic human rights, and some prisoners suffer permanent physical and/or mental health damage as a result. The cataloged problems listed in the report include severe overcrowding, grossly inadequate health services, inadequate food and drinking water, lack of adequate light, ventilation and time outdoors, poor hygiene and sanitation, and lack of basic necessities such as toiletries and clean bedding. Indeed, in some prisons overcrowding is such a problem that there is not even adequate floor space, let alone bedding, and prisoners must sleep in shifts because they cannot all lie down at the same time. The report notes that many of the identified problems are somewhat representative of conditions across the country's overall population, but that the state needs to provide a certain level of habitability for prisoners:
It is true that some of these resource problems are also experienced by the general population in Liberia. However, prison inmates are under direct state control and completely dependent on the state to meet their most basic needs. Irrespective of resource constraints, the government must put in place a system that ensures the basic human rights of those in its custody. In all circumstances, the government has a clear and binding obligation not to expose prison inmates to conditions that constitute cruel, inhuman and degrading treatment.
The report also notes that most prisoners have not been convicted of any crime and the vast majority are people living in poverty, without access to lawyers and with few financial resources. In July the AI delegates visited Monrovia Central Prison, the country's largest facility with a design capacity of 374 — they found a prisoner population of 839.

Liberia has been elsewhere criticized for its poor human rights record in recent years. UN Secretary-General Ban Ki-Moon [official profile] emphasized [UN News Centre report] in a 2010 progress report [text, PDF] that reconciliation in Liberia [JURIST report] hinges on the development of its national security and its legal institutions. Along with poor prison conditions Liberia struggles [JURIST report] with corruption in its criminal justice system and sexual and gender-based violence, including rape and forced marriage, according to a UN Mission in Liberia [official website] combined quarterly report [text, PDF] released in April 2008. In 2007, the UN independent expert on the promotion and protection of human rights in Liberia urged the country to accelerate its human rights efforts [JURIST report], and in particular called on the Liberian Truth and Reconciliation Commission (TRC) [official website] to begin operations. The TRC held its first public hearings [JURIST report] after several months delay due to lack of funding. The TRC is investigating possible war crimes that occurred during the civil war that ended in 2003, but does not have the authority to try cases.




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Federal judge dismisses state challenge to voting rights law
Dan Taglioli on September 21, 2011 1:17 PM ET

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[JURIST] A judge for the US District Court for the District of Columbia [official website] Wednesday dismissed a challenge to election monitoring under the Voting Rights Act of 1965 (VRA) [materials]. In a 151-page decision [opinion, PDF], Judge John Bates rejected the arguments of officials representing Shelby County, Alabama, together with a corps of conservative activists, who claimed it is no longer constitutionally justifiable to subject Alabama and certain other states to Section 5 [DOJ backgrounder] "preclearance" rules under the VRA. These rules require covered jurisdictions to clear changes in voting districts, polling places and other electoral processes with the Department of Justice (DOJ) [official website] or federal courts. Section 5 relies heavily on patterns of past discrimination to determine which state, county and local governments must obtain preclearance for election changes. After reviewing 15,000 pages of records supporting the 25-year extension of the VRA passed by Congress in 2006, Bates concluded that the modern existence of intentional racial discrimination in voting does in fact justify the 2006 reauthorization of the preclearance requirements:
Despite the effectiveness of Section 5 in deterring unconstitutional voting discrimination since 1965, Congress in 2006 found that voting discrimination by covered jurisdictions had continued into the 21st century, and that the protections of Section 5 were still needed to safeguard racial and language minority voters. Understanding the preeminent constitutional role of Congress under the Fifteenth Amendment to determine the legislation needed to enforce it, and the caution required of the federal courts when undertaking the "grave" and "delicate" responsibility of judging the constitutionality of such legislation—particularly where the right to vote and racial discrimination intersect—this Court declines to overturn Congress's carefully considered judgment.
The VRA was enacted to put an end to the systematic disenfranchisement of minority voters that ran rampant in Southern districts in the 1960s. According to a public DOJ list [materials], currently nine whole states and many individual counties and municipalities are Section 5 Covered Jurisdictions. The Senate extended the act [NYT report] in 2006 by an overwhelming 98-0 vote.

The Arizona Attorney General [official website] filed a similar suit [JURIST report] in August seeking to enjoin enforcement of the Section 5 rules in that state. In 2009, the US Supreme Court [official website] upheld [opinion, PDF; JURIST report] the Section 5 provisions of the VRA in Northwest Austin Municipal Utility District Number One v. Holder [Cornell LII backgrounder]. The court voted 8-1 in favor of permitting the appellant municipality to "bail out" from the preclearance requirement if it can establish a history of compliance with the VRA, but declined to rule on the constitutionality of the 25-year extension of the act. Writing for the majority, Chief Justice John Roberts opined that "things have changed in the South," observing that "[b]latantly discriminatory evasions of federal decrees are rare." The plaintiff was a municipal utility district in Texas that wanted to be exempted from the requirement and was challenging the most recent extension generally. At their enactment in 1965, the requirements were only supposed to be in place for five years. Section 5 has since been extended several times.




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France prosecutor seeks acquittal in Chirac corruption case
Ashley Hileman on September 21, 2011 10:44 AM ET

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[JURIST] A Paris prosecutor on Tuesday, asked that the corruption charges against former French president Jacques Chirac [BBC news profile; JURIST news archive] be dropped. Additionally, the prosecutor has requested acquittal [BBC report] of the nine other individuals charged with Chirac. The charges against Chirac stem from his time as mayor of the city of Paris and accuse him of using public funds to support his political ambitions. The anti-corruption group Anticor [advocacy website, in French], whose lawyers exposed some of the ways in which the funds were allegedly misused, have highly criticized the prosecutor's request. Earlier this month, Chirac's legal team filed documents with the 11th Criminal Court of Paris claiming Chirac is too ill to face his corruption trial, only days before the trial was slated to continue after being delayed in March [JURIST reports]. However, Judge Dominique Pauthe of the court agreed to continue the proceedings without him [JURIST report]. The trial is set to end on Friday with the judge still having the ability to deny the request and enter a guilty verdict.

While Tuesday's request may result in an end to this trial, it would not be the end of Chirac's legal woes. Last week, the prosecutor's office began an inquiry into allegations [JURIST report] against Chirac and his prime minister Dominique de Villepin over the receipt of millions of dollars from African leaders. The accusations against the two former French officials were made by a lawyer who worked as an aide to Chirac and claims to have participated in the passage of over $20 million in cash [Reuters report] from African leaders to be used as political donations. All of the alleged donations came from leaders of former French colonies. An investigation will also be launched by the Paris Bar into the actions taken by the accuser as his involvement with the passage of these funds is unethical within the legal profession. Villepin, like Chirac, had also been the subject of another trial, which involved accusations that he participated in a smear campaign [AP report] against current President Nicolas Sarkozy [official website, in French], but was recently acquitted.




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Federal appeals court reinstates $675,000 damages in music sharing case
Drew Singer on September 21, 2011 10:26 AM ET

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[JURIST] The US Court of Appeals for the First Circuit [official website] on Friday reinstated [opinion] a $675,000 verdict against a Boston University [academic website] student who illegally downloaded 30 songs and then shared them on the Web.The verdict was, at one point, reduced to $67,500, because then-judge Nancy Gertner, who has since retired, found the original penalty "unconstitutionally excessive." Gertner should not have approached the reduction as a constitutional question, the appeals court ruled. A trial judge may reduce the penalty again, however, if the reduction is done in accordance with the common law practice of allowing the winning party to either pay the smaller amount or demand a new trial.

The original 2009 ruling held that Joel Tenenbaum [defense website] is liable for illegally downloading music. Four record companies, including Sony BMG and Warner Brothers [corporate websites], brought suit against Tenenbaum in the US District Court for the District of Massachusetts [official website], accusing him of illegally downloading 30 songs [complaint, PDF] in violation of copyright laws. Tenenbaum admitted to downloading hundreds of songs, and Gertner directed the jury to consider only the amount of damages [Boston Globe report].




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Supreme Court stays Texas execution for third time
Ashley Hileman on September 21, 2011 9:48 AM ET

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[JURIST] US Supreme Court [official website] Justice Antonin Scalia on Tuesday ordered a stay of execution [text, PDF] for Cleve Foster [TDCJ profile; case materials], a former Army recruiter and convicted murderer. The execution, which had been scheduled for Tuesday evening, was stayed for the third time [AP report] and will remain so until the court decides whether to grant certiorari in the case. Foster was convicted of the murder and subsequent attempt to dispose of the body of a young woman in Texas in 2002, but he maintains that he is innocent and argues ineffective counsel resulted in his conviction. Prior to Tuesday's order, his execution was most recently stayed [JURIST report] in January 2011.

This is the second time this month the Supreme Court has blocked a Texas execution, pending a decision on certiorari. Last week, the court ordered a stay of execution [JURIST report] for Duane Buck. Buck's appeal is not arguing his innocence, but rather improper practices during his sentencing hearing. A clinical psychiatrist testified that Buck, a black man, was more likely to commit another crime due to his race, and thus should be given the death penalty. The same psychiatrist had testified similarly in six other sentencing hearings that resulted in the death penalty, all of which have been overturned. The appeal alleges a violation of equal protection created when the prosecution asked leading questions to elicit racially-charged responses and when then-attorney general John Cornyn [official website] guaranteed sentencing rehearings in the seven cases. Under Cornyn's administration, six of the rehearings took place, but his successor, Greg Abbott [official website], has not conducted one for Buck, whose legal team has lost appeals in all courts lower than the Supreme Court as well as an appeal of clemency to the Texas Board of Pardons and Paroles. It is unknown when the court will accept or deny certiorari.




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Federal judge orders release of Proposition 8 trial video
Drew Singer on September 21, 2011 9:46 AM ET

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[JURIST] Chief US District Judge James Ware of the US District Court for the Northern District of California [official website] decided Monday to unseal video recordings [order, PDF] from last year's trial over Proposition 8 [text, PDF; JURIST news archive], California's same-sex marriage ban. Unless a higher court overrules the order, it will take effect [AP report] September 30. In August of this year, Ware held a hearing over whether there was a compelling reason to keep the videos a secret. A group a lawyers, along with the Associated Press [corporate website], argued that the videos should be released. The trial judge had ruled [JURIST report] last year that the trial could be broadcast live to five federal courthouses and posted to the court's YouTube [website] channel, but that decision was later overturned [JURIST report] by the US Supreme Court.

Earlier this month, the California Supreme Court [official website] heard oral arguments on whether intervening advocacy groups can defend Proposition 8 in court, in response to a certified question [JURIST reports] by the US Court of Appeals for the Ninth Circuit [official website]. When Judge Vaughn Walker struck down the same-sex marriage ban [JURIST report] 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 [advocacy website] and other groups to defend the law.




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UN rights chief urges Belarus to release political prisoners
Julia Zebley on September 21, 2011 8:53 AM ET

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[JURIST] UN High Commissioner for Human Rights Navi Pillay [official profile] on Tuesday suggested a need for UN intervention [report text, PDF] in Belarus and demanded the nation free non-violent political prisoners. Although Belarus is an active member of the UN and has ratified many of its human rights policies, Pillay noted a sharp deterioration in human rights since the 2010 disputed re-election of President Alexander Lukashenko [BBC profile; JURIST news archive] who has been in power for 17 years since his 1994 election. Pillay said that citizens have been discouraged from protesting and have not received fair trials, and she referenced the administration enforcing "a policy of harassment against non-governmental organizations (NGOs) and human rights defenders." The report also cited Belarus as the only European nation to still enforce the death penalty. Pillay recommended the immediate release of political prisoners, an end to harassment of human rights and NGOs, an investigation into alleged abuses of the judicial system and the acceptance of an Office of the High Commissioner for Human Rights (OHCHR) [official website] mission to the country. In response, ambassador Mikhail Khvostov for Belarus said his country disagrees on what constitutes a peaceful demonstration [UN News Centre report] and that Belarus is committed to human rights.

Last month, members of the Belarus Parliament introduced a bill that would ban so-called "silent protests" [JURIST report], including those involving large groups of people basically doing nothing. Nonetheless, silent protests continue [RT report], largely in defiance of Lukashenko. Earlier this year, Belarus' Minsk City Court delivered suspended sentences for two former presidential candidates, Uladzimer Nyaklyaeu and Vital Rymasheuski, convicted of organizing protests following the re-election [JURIST reports] of Lukashenko. The two-year suspended sentences were handed down days after former presidential candidate Andrey Sannikau [Free Belarus Now profile] was sentenced to five years [JURIST report]. Hundreds of activists were arrested after protesting Lukashenko's 2006 presidential win, including opposition candidate Alexander Milinkevich [JURIST reports]. While Lukashenko has since sought to improve his country's ties with western nations, the US State Department has historically criticized Belarus' human rights record [JURIST report]. The UN General Assembly Third Committee and the International Helsinki Federation for Human Rights [JURIST reports] have similarly denounced Belarus for human rights abuses.




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Federal appeals court allows damages against Chevron for Ecuador oil spill
Julia Zebley on September 21, 2011 7:27 AM ET

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[JURIST] The US Court of Appeals for the Second Circuit [official website] on Monday ended an injunction [JURIST report] on damages levied against US oil company Chevron [corporate website; JURIST news archive], making the company potentially liable for $18 billion in damages to Ecuadorian citizens for an oil spill in the 1990s. The award will not be granted immediately, pending appeals in Ecuador [press release] and a decision by the Permanent Court of Arbitration [official website; case materials] in The Hague. The court also issued a stay on a planned hearing in November and rejected the Ecuadorians' motion to recuse Judge Lewis Kaplan for bias. Chevron was unfazed by the ruling, insisting they are the victims of fraud: "There is no legitimate evidence supporting any finding of liability against Chevron because Texaco Petroleum Company cleaned up its share of environmental impacts in Ecuador and the remaining impacts are the responsibility of the government of Ecuador and its state-owned oil company, Petroecuador." Representatives for the Ecuadorians made several statements [El Universo report, in Spanish] praising the decisions, and accusing Chevron of valuing sensationalism over law [San Francisco Chronicle report].

Damages were initially awarded in February [JURIST report] by the Provincial Court of Sucumbios in Ecuador, finding that Texaco, which was acquired by Chevron in 2001, polluted large areas of the country's rain forest. That month, Chevron filed a lawsuit against plaintiffs' lawyers and consultants in the case, claiming that professionals for the plaintiffs were attempting to extort Chevron. The damages were then enjoined in New York in March. In July, the Second Circuit upheld [LAT report] a May ruling [NYT report] by the Southern District of New York ordering filmmaker Joe Berlinger to turn over to Chevron certain outtakes from his 2009 documentary Crude [film website]. Chevron claims the outtakes show plaintiffs' lawyers discussing illegal and unethical tactics, including ghost-writing a court appointed expert's report, intimidating a judge and colluding with government officials. Chevron claims that a 1995 cleanup agreement between Ecuador and Texaco, completed in 1998 at a cost of $40 million, absolves Chevron of all liability.




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Holder: Obama committed to closing Guantanamo
Sarah Posner on September 20, 2011 2:18 PM ET

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[JURIST] US Attorney General Eric Holder said Tuesday President Barack Obama [official websites] remains committed to closing the detention facility at Guantanamo Bay [JURIST news archive], despite political opposition. At the European Parliament in Brussels, Holder stated the administration's commitment to closing Guantanamo before the next presidential election [AP report]. Obama has faced criticism for not closing Guantanamo after issuing an executive order [text, PDF] in January 2009 directing that the military prison be closed [JURIST report] "as soon as practicable, and no later than 1 year from the date of this order." However, Congress blocked the executive order and barred the transfer of detainees to the US. US Defense Secretary Robert Gates [official profile] said at a congressional hearing in February that Guantanamo Bay is unlikely to be closed [JURIST report] because of security concerns.

There are 171 detainees remaining at Guantanamo. Earlier this month, the US Court of Appeals for the District of Columbia Circuit affirmed [JURIST report] the 2010 denial of petition for a writ of habeas corpus [Cornell LII backgrounder] for Guantanamo detainee Shawali Khan. In August, Former Guantanamo Bay detainee David Hicks has filed an appeal [JURIST report] with the UN Human Rights Committee complaining of multiple violations of international law stemming from his five-year incarceration at Guantanamo from 2002 to 2007. In July, an EU official told the Miami Herald that Europe is still willing to resettle Guantanamo Bay detainees [JURIST report] despite Congress' efforts to prevent closure and transfers. In a display of commitment to a 2009 agreement [JURIST report] with the US, the EU reiterated that detainees would still be accepted on a case-by-case basis.




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Alaska judge allows tax exemption for same-sex couples
Sarah Posner on September 20, 2011 1:05 PM ET

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[JURIST] Alaska Superior Court Judge Frank Pfiffner on Friday ruled it unconstitutional [opinion, PDF] for Alaska to deny same-sex couples the senior citizen and disabled veteran property tax exemptions given to married couples. The American Civil Liberties Union (ACLU) and the ACLU of Alaska [advocacy websites] challenged [complaint, PDF] the state's tax exemption law on behalf of three same-sex couples in Anchorage who were denied tax benefits [AP report] for lacking marital status. The complaint alleged that Alaska's Constitution forbids discrimination against same-sex domestic partners in qualifications for tax exemptions. The complaint further alleged that denying tax exemptions to same-sex couples infringed on the plaintiffs' natural right to liberty, equal rights, opportunities, and protection under the law, as well as the right to be free from sex discrimination, and the right to privacy. Pfiffner found that the denial violates the equal protection clause of the Alaska Constitution [text].

Rights for same-sex couples continue to be debated across the US. Last week, New York Attorney General Eric Schneiderman filed a motion to dismiss [JURIST report] a lawsuit challenging the validity of the state's newly passed Marriage Equality Act [JURIST report]. Also last week, the North Carolina Legislature approved putting a constitutional amendment to ban same-sex marriage [JURIST report] on a statewide ballot to be voted on in May. Earlier this month, the US Court of Appeals for the Ninth Circuit ruled [JURIST report] that House Bill 2013, a law rescinding health benefits for same-sex couples in the public sector, is in violation of the equal protection clause of the US Constitution.




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Europe court rules Russia violated Yukos oil's rights
Jennie Ryan on September 20, 2011 11:23 AM ET

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[JURIST] The European Court of Human Rights (ECHR) [official website] ruled [judgment text] Tuesday that, although Russia did not misuse legal proceedings in order to destroy an oil company, it did violate the business's rights. The former Russian oil company, Yukos Oil, filed suit against the country alleging that it forced the company into liquidation through unfair taxation practices. In 2003, Russian officials arrested former Yukos Oil owner Mikhail Khodorkovsky [defense website; JURIST news archive] and his business partner Platon Lebedev [defense website] on charges of fraud and tax evasion. The court ruled that Russia violated Article 1 and Article 6 of the European Convention on Human Rights [text, PDF] in relation to its tax assessment proceedings against Yukos and by giving the company insufficient time to prepare its case before the lower courts. The court did not determine an award of damages and costs. Yukos sought recovery of USD $98 billion, the largest claim in the history of the ECHR. The ruling may be appealed by either party, but it is not immediately clear if either will do so.

Khodorkovsky and Lebedev were convicted in December and sentenced [JURIST reports] in the Khamovinchesky District Court [official website, in Russian] on charges connected with embezzling more than $27 billion from Yukos Oil. Prior to this conviction, Khodorkovsky and Lebedev were already serving eight-year prison sentences for fraud and tax evasion [JURIST report]. Earlier this month, the Supreme Court of Russia [official website, in Russian] ruled that Khodorkovsky and Lebedev were illegally detained [JURIST report] for their trial last year, a symbolic victory for the pair that will have no effect on their sentences. International human rights organizations and numerous governments criticized Russia's justice system following the guilty verdict [JURIST reports]. Last year, former Russian prime minister Mikhail Kasyanov [BBC profile] testified [JURIST report] that former president and current prime minister Vladimir Putin [JURIST news archive] ordered Khodorkovsky's arrest for political reasons, indicating that Khodorkovsky had funded the Communist Party [party website, in Russian] without first getting approval to do so from the president.




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'Don't Ask Don't Tell' officially repealed
Jennie Ryan on September 20, 2011 10:36 AM ET

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[JURIST] The repeal of Don't Ask, Don't Tell (DADT) [10 USC § 654; JURIST news archive] officially took effect [memo, PDF] Tuesday at 12:01 AM ET. With the repeal of the law, the military can no longer prevent gays and lesbians from serving openly among its ranks. The occasion was marked by statements of commemoration from various government agencies, as well as individual officials. President Barack Obama [official website] released a statement [text] celebrating the fact that "patriotic Americans in uniform will no longer have to lie about who they are in order to serve the country they love." The US Army [official website] released a statement [text, PDF], signed by three of its highest ranking officials, heralding the end of the controversial law:
From this day forward, gay and lesbian Soldiers may serve in our Army with the dignity and respect they deserve. Our rules, regulations and policies reflect the repeal guidance issued by the Department of Defense and will apply uniformly without regard to sexual orientation, which is a personal and private matter.
The letter also highlighted the training military personnel have received in preparation for the change. Department of Defense (DOD) [official website] press secretary George Little said that that the military is adequately prepared for the end of the current policy, with approximately 97 percent of the military having undergone specific DADT repeal preparation. Various Washington leaders have scheduled news conferences for later Tuesday. At the Pentagon, Defense Secretary Leon Panetta [official profile] and the Chairman of the Joint Chiefs of Staff Admiral Mike Mullen [official profile] will field questions about the repeal, while a bipartisan group of congressional supporters of the repeal will be answering questions on Capitol Hill.

The repeal took effect as scheduled despite opposition from some. Four days before the repeal was scheduled to go into effect, two Republican Congressmen sent a letter to Panetta asking to delay the repeal [JURIST report] of DADT. Earlier this month, lawyers for the US Department of Justice (DOJ) asked the US Court of Appeals for the Ninth Circuit [official websites] to overturn a ruling that the DADT policy is a violation of service members' constitutional rights, arguing that the impendency of repeal renders the original court decision moot. In July, the Ninth Circuit ruled that DADT would remain partially in effect [JURIST report] during the 60 days prior to its newly-scheduled repeal. The court effectively reiterated its order issued [JURIST report] the previous week, in which it reinstated DADT but explicitly ordered the military to refrain from investigating, penalizing or discharging any of its members as originally provided for under the policy. Hours earlier, Obama, Panetta and the Joint Chiefs of Staff certified DADT's repeal [JURIST report], scheduling the policy to end on September 20. Obama signed the bill to repeal DADT [JURIST report] in December. The Don't Ask, Don't Tell Repeal Act of 2010 [HR 2965 materials] was approved in the Senate in December after being passed [JURIST reports] by the House of Representatives the week before. Since the enactment of DADT in 1993, approximately 13,000 servicemen and women have been discharged from the armed forces as a result of the policy.




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FBI reports decrease in violent crime for fourth straight year
John Paul Putney on September 19, 2011 5:02 PM ET

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[JURIST] Violent crime in the US dropped for the fourth consecutive year, the FBI [official website] announced [press release] on Monday. The estimates are part of the annual figures prepared as part of the Bureau's Crime in the United States (CIUS) [official website] report for 2010 [PDF]. In addition to an overall drop in violent crime, property crimes also decreased for the eighth straight year. Compared to 2009 statistics [JURIST report], violent crimes declined significantly by 6.0 percent, whereas property crimes decreased by 2.7 percent. The findings go against conventional wisdom [AP report] indicating that crime tends to increase when the economy is weak and unemployment is high. Notably, while the overall incidents of violent crime dropped nationwide, major cities in the Northeast experienced double-digit increases [Reuters report] in the number of murders, including Boston, New York and Newark, New Jersey.

The FBI report comes on the heels of the Department of Justice (DOJ) [official website] report [JURIST report] released last week indicating the national rate of violent crime decreased by 13 percent [press release] during 2010. The FBI data is a compilation of 18,108 city, county, university and college, state, tribal and federal agencies that voluntarily participated in the FBI's Uniform Crime Reporting (UCR) Program. In 2006 and 2005 [JURIST reports], the CIUS report showed an increase of 1.3 percent and of 2.3 percent, respectively.




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Federal appeals court rules 17-year sentence for Padilla too lenient
John Paul Putney on September 19, 2011 4:13 PM ET

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[JURIST] The US Court of Appeals for the Eleventh Circuit [official website] ruled [opinion, PDF] Monday that a 17-year sentence [JURIST report] was not enough for Jose Padilla [JURIST news archive], convicted [JURIST report] on terrorism-related charges. Padilla and co-defendants Adham Hassoun and Kifah Jayyousi had appealed their convictions, and federal prosecutors appealed the sentence given by US district court judge Marcia Cooke. Upholding all three convictions and ordering a new sentencing hearing for Padilla, the court explained:
[T]he district court "commit[ted] a clear error of judgment in considering the proper factors." The district court attached little weight to Padilla's extensive criminal history, gave no weight to his future dangerousness, compared him to criminals who were not similarly situated, and gave unreasonable weight to the conditions of his pre-trial confinement.
Specifically, the court noted Padilla's 17 prior arrests and objected to a reduction of his sentence for the three-and-a-half years he was detained as an "enemy combatant" on a base in South Carolina before charges were brought against him. Dissenting judge Rosemary Barkett opposed overturning the sentence because doing so "simply substitutes this court's sentencing judgment for that of the trial judge." Padilla's attorney has indicated he intends to appeal for a rehearing en banc by the Eleventh Circuit or to the US Supreme Court [official website].

Jose Padilla has been the focus of much litigation since his arrest in 2002 [AP report] on suspicion of conspiracy to detonate a "dirty bomb"—a conventional explosive surrounded by radioactive material. In June, Padilla appealed the dismissal of his lawsuit [JURIST report] against government officials over his detention in a military prison, which he claims was unlawful, and that he was subjected to torture, denied communication with his family or lawyers, denied ability to practice his religion and denied appropriate medical care. In June 2009, a federal judge in San Francisco allowed a lawsuit filed [JURIST reports] by Padilla to move forward against University of California Berkeley law professor John Yoo [academic profile; JURIST news archive], the author of controversial US government memos arguing that detained enemy combatants could be denied Geneva Conventions protections against torture.




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Liechtenstein voters reject legalized abortion
Jennie Ryan on September 19, 2011 11:31 AM ET

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[JURIST] Voters in Liechtenstein on Sunday rejected a proposal to legalize abortion [JURIST news archive] in the country after Hereditary Prince Alois of Liechtenstein [official profile], the acting Head of State, expressed displeasure with the law [press release, PDF in German] and threatened to veto the proposed change. The referendum, entitled Help Instead of Punishment, would have decriminalized abortion [AP report] in the first 12 weeks of pregnancy or if the child is severely disabled. According to official count, 52.3 percent of voters voted against the referendum, while 47.7 percent voted in favor of the proposed change. Under the current law, women who get an abortion can be sentenced to up to one year in prison, and doctors who perform the procedure can be sentenced to up to three years in prison. Abortions may only be performed in the country to save the life of the mother or if the mother was under age 14 when she became pregnant. A counter proposal is expected to come before the Liechtensten Parliament [official website, in German] soon. Under the counter proposal, abortion would still be a crime, but it would no longer be punished.

Abortion rights has been a contentious issue in the international community with many advocacy groups criticizing countries with restrictive policies regarding the procedure. In August 2010, the Center for Reproductive Rights (CRR) [advocacy website] criticized [JURIST report] the restrictive abortion laws of the Philippines as a "human rights crisis," resulting in the death of thousands of women annually. In January 2010, Human Rights Watch (HRW) [advocacy website] argued that Ireland's restrictive abortion laws increase health risks to women [JURIST report] and expose them to deliberate misinformation about abortion procedures. Ireland's current legislation prohibits abortion for any reason except when the mother's life is threatened and carries a potential sentence of life imprisonment. In July 2009, Amnesty International (AI) [advocacy website] called on Nicaragua to end its total ban on abortions [JURIST report], calling for the country to eliminate severe criminal punishments for those who seek or perform abortions.




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ICTY sentences uncooperative witness in retrial of former Kosovo PM
Jennie Ryan on September 19, 2011 10:32 AM ET

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[JURIST] The International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] on Friday sentenced a man for contempt of court [judgment, PDF] for refusing to testify. The man, Shefqet Kabashi, was sentenced to two months in jail [press release] for refusing on two occasions to answer questions during the 2007 trial related to the 1998-1999 war in Kosovo [BBC backgrounder; JURIST news archive]. Kabashi pleaded guilty in August to charges that he "knowingly and willfully interfered with the Tribunal's administration of justice" by refusing to answer questions as a witness against former Kosovo prime minister Ramush Haradinaj [BBC profile]. During sentencing, Judge Alphons Orie chided Kabashi for withholding what could have been important testimony, saying "By contumaciously refusing or failing to answer questions as a witness, Mr Kabashi deprived the Haradinaj et al. Trial Chamber of evidence relevant for an effective ascertainment of truth in the adjudication of that case." Both sides have the right to appeal, but it is not immediately clear whether either will do so.

Haradinaj was acquitted [JURIST report] by the ICTY in 2008 of charges murder, rape, torture, abduction, cruel treatment, imprisonment and the forced deportation of civilians allegedly in connection with his position as a senior commander in the Kosovo Liberation Army (KLA) [GlobalSecurity backgrounder]. An appeals court later overturned the acquittal [JURIST report], resulting in a new trial. The re-trial of Haradinaj [JURIST report] began in mid-August. In September, the European Rule of Law Mission in Kosovo (EULEX) [official website] charged 10 former members of the KLA with war crimes [JURIST report] for their actions during the war in Kosovo. Those individuals were previously arrested in March [JURIST report]. EULEX has been investigating war crimes [JURIST report] since December 2008. Kosovo controversially seceded from Serbia [JURIST report] in February 2008.




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Seven states join DOJ lawsuit opposing AT&T, T-Mobile merger
Maureen Cosgrove on September 18, 2011 3:22 PM ET

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[JURIST] Seven states, including California, Illinois, Massachusetts, New York, Ohio, Pennsylvania and Washington, on Friday joined an antitrust lawsuit [amended complaint, PDF] initiated by the US Department of Justice (DOJ) [official website] attempting to block a proposed $39 billion acquisition of cellular carrier T-Mobile USA by Telecom giant AT&T [corporate websites]. The lawsuit, filed by the DOJ in August [JURIST report], cites the important role T-Mobile has played in keeping prices down by creating pressure on the other large carriers, including not only AT&T, but also Verizon Wireless and Sprint Nextel [corporate websites]. New York Attorney General Eric Schneiderman [official website] announced his decision [press release] to join the DOJ lawsuit on behalf of New York, saying the merger would have a negative impact and should be barred:
This proposed merger would stifle competition in markets that are crucial to New York's consumers and businesses, while reducing access to low-cost options and the newest broadband-based technologies. We must do everything we can to encourage innovation and job creation. In vulnerable upstate communities, where concentration in some markets is already very high, and in New York City's information-intensive economy, the impact this merger would have on wireless competition, economic growth, and technological innovation would be enormous.
In its response to the suit, filed last week [JURIST report] in the US District Court for the District of Columbia [official website], AT&T argued that acquiring T-Mobile will allow it to provide better services to its customers [AP report] as a result of the expansion of its mobile network. In addition, AT&T contends that smaller, regional carriers will act as alternatives to consumers and thus not allow the market to be completely dominated by itself, Verizon and Sprint. The case is set to be heard on September 21.

The worldwide consolidation of media is an ongoing global concern. In August, a class action lawsuit was filed [JURIST report] against Apple [corporate website] and five major publishers for allegedly colluding to illegally fix electronic book (e-book) prices. Communication Director for Free Press, Dave Saldana argued last July [JURIST op-ed] that the proposed AT&T/T-Mobile deal is an example of the enormous influence large media corporations can bring to bear through massive public relations blitzes and the acquisition of political influence through the pouring of money into lobbying efforts and campaign contributions. Saldana said that, for these reasons, AT&T remains confident that its T-Mobile purchase will go through, "because it knows it has several hundred million reasons to push for the merger, and millions of means to get it." Saldana warned that media consolidation is dangerous because it gives the companies leverage to sway public opinion and dominate the narrative when their own practices are questioned.




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Venezuela president criticizes human rights court ruling
Maureen Cosgrove on September 18, 2011 2:30 PM ET

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[JURIST] Venezuelan President Hugo Chavez [BBC profile; JURIST news archive] on Saturday criticized the Inter-American Court of Human Rights (IACHR) [official website] for ruling in favor of presidential hopeful Leopoldo Lopez, thereby allowing him to run for office. A Venezuelan anti-corruption official had barred Lopez [Huffington Post report] from running for office after conducting a corruption investigation in 2005. Chavez called the IACHR ruling politically motivated [CSM report]. He further claimed that the Costa Rica-based international court is part of a system that protects corrupt behavior and is influenced by the US and the wealthy. The Venezuelan presidential primary election, where voters will select an opposition leader to challenge Chavez, will be held in February, and the presidential election will be held in October 2012.

The Venezuelan government and the IACHR are often in disagreement. In June 2010, the IACHR sent a letter to the Venezuelan government expressing concern [JURIST report] over the increasing threat to freedom of expression [press release] in the country, citing three recent cases that caused particular concern. In February 2010, the IACHR released a report [text; JURIST report] providing a detailed analysis on the state of human rights in Venezuela, which ultimately concluded that not all citizens are ensured full enjoyment of their basic human rights. The top Venezuelan human rights official criticized the report [JURIST report] and said that the report makes unfair characterizations and undermines Venezuelan democracy.




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Egypt court convicts former Mubarak regime minister in corruption case
Ashley Hileman on September 18, 2011 12:09 PM ET

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[JURIST] An Egyptian court on Sunday convicted Zohair Garanah, the former tourism minister under the Hosni Mubarak [Al Jazeera profile; JURIST news archive] regime, on corruption charges. As a result of the guilty verdict, the court sentenced him to three years in prison [AP report]. The conviction of Garanah, a businessman before joining Mubarak's cabinet, closely followed that of Ahmed Ezz, who was also highly involved in the ruling party and convicted [JURIST report] on Friday on charges of corruption. Garanah is currently serving five years [JURIST report] in jail after an Egyptian criminal court in May found that he had sold public land in the Red Sea province below market value to two businessmen. The two businessmen were also found guilty in absentia and also received five-year sentences. The court said that Garranah had illegally allocated the public land to the private developers. He will now serve the longer of the two sentences. His May sentence made him the second high-ranking state official to be found guilty of corruption since Mubarak was forced from office last February; however, a number of other ministers and businessmen involved with the regime continue to be detained and tried, including Mubarak, the resumption of whose trial earlier this month, was marked by violence in the courtroom [JURIST report].

While many of these trials end in convictions, in July, an Egyptian court acquitted three former ministers under Mubarak on charges of misappropriating state funds. The Cairo Criminal Court found three ministers not guilty [JURIST report]: Ahmed Maghrabi, former minister of housing, Yousef Boutros-Ghali, former minister of finance, and former minister of information Anas el-Fiqqi. This verdict was the first time former ministers of Mubarak have been found not guilty on corruption charges. The court did sentence former trade minister Rachid Mohammed Rachid in absentia for squandering public funds and profiteering. Maghrabu and Boutros-Ghali will remain in custody as they are facing other charges. The decision was not well received by many Egyptians [AP report] who feel that the Cairo criminal court is rushing corruption trials while failing to bring more cases for human rights abuses against protesters.




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DOJ reports drop in violent crime for 2010
Ashley Hileman on September 18, 2011 11:28 AM ET

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[JURIST] The US Department of Justice (DOJ) [official website] announced Thursday that the national rate of violent crime decreased by 13 percent [press release] during 2010. The announcement stemmed from statistics in the annual National Crime Victimization Survey [text, PDF], which consists of self-reported information and is complied by the Bureau of Justice Statistics [official website] to estimate the rates and level of criminal victimization including violent victimization, property victimization and personal theft. According to the report, this decrease is in line with the trend of declining victimization, with both violent and property victimizations at their lowest levels since the early 1990s. The rather dramatic drop in violent victimization is attributed to a decrease in the number of simple assaults, which saw a 15 percent decline from 2009. The report for 2010 also differed from previous years in its indication that for the first time males and females experienced similar rates of victimization with males historically experiencing higher numbers.

Rates of violent crime along the US-Mexico border [GlobalSecurity backgrounder] have also been declining for several years [JURIST report], according to a USA Today analysis released in July. The study indicated that, on average, US border cities were safer than other cities in the same states, with border cities maintaining lower crimes rates than the national average. Federal crime statistics, interviews and crime data from over 1,600 local law enforcement agencies in four border states, as well as demographic figures from the US Census Bureau's American Community Survey [official website], form the basis of the study. The analysis suggests that the US-Mexico border may not be as dangerous as the general US population perceives. For example, according to the study, murder and robbery rates for cities within 50 miles of the border were lower than the respective state average in nearly every year from 1998 to 2009. Critics of the study are concerned that the analysis does not accurately reflect the true landscape of violent crime in border cities and fails to take into consideration those crimes that go unreported, particularly kidnapping and extortion. Several analysts quoted in the report, however, argue that the analysis confirms that politicians have exaggerated the extent to which violence occurs along the US-Mexico border and make unsubstantiated claims linking illegal immigration to crime rates.




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Supreme Court stays Texas execution
Julia Zebley on September 17, 2011 5:06 PM ET

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[JURIST] US Supreme Court [official website] Justice Antonin Scalia on Thursday ordered a stay of execution [text, PDF] for Duane Buck, a convicted murderer in Texas, pending a determination on whether to grant certiorari [writ text, PDF] in the case. Buck's appeal is not arguing his innocence, but rather improper practices during his sentencing hearing. A clinical psychiatrist testified that Buck, a black man, was more likely to commit another crime due to his race, and thus should be given the death penalty. The same psychiatrist had testified similarly in six other sentencing hearings that resulted in the death penalty, all of which have been overturned. The appeal alleges a violation of equal protection created when the prosecution asked leading questions to elicit racially-charged responses and when then-attorney general John Cornyn [official website] guaranteed sentencing rehearings [NYT report] in the seven cases. Under Cornyn's administration, six of the rehearings took place, but his successor, Greg Abbott [official website], has not conducted one for Buck.
Of the seven individuals whose death sentences the Attorney General had identified as having been obtained in violation of equal protection, Mr. Buck is the only one who has not been resentenced at a trial free from consideration of his race as a basis for imposing death. The only change that has taken place since the Attorney General identified Mr. Buck's case as being similar to the Saldano case is that a different person now holds the position of Attorney General. That is an insufficient legal basis on which to treat Mr. Buck differently from the six other cases that the former Attorney General had identified as being similar. Capriciousness in the administration of the death penalty is intolerable. Mr. Buck has been twice-subjected to equal protection violations, once when the government asked the jury to sentence him to death, and a second time when the government arbitrarily treated him differently from similarly situated defendants. Texas promised to remedy Mr. Buck's racially-based death sentence, then reneged on that promise, then hid its promise from the federal courts to avoid its enforcement in Mr. Buck's case.
Buck's legal team has lost appeals in all courts lower than the Supreme Court as well as an appeal of clemency to the Texas Board of Pardons and Paroles. It is unknown when the court will accept or deny certiorari.

The Supreme Court received international criticism for not staying a Texas execution earlier this year. UN High Commissioner for Human Rights Navi Pillay [official profile] criticized the US execution of Mexican national Humberto Leal Garcia [advocacy website], saying that the sentence violated international law [JURIST report]. Pillay said that the US denied consular access [press release] to Leal Garcia, which was his right under Article 36 of the Vienna Convention on Consular Relations [text, PDF]. Although the State of Texas convicted and sentenced Leal Garcia for murder in 1998. The US Supreme Court refused [JURIST report] to stay the execution, with the majority in a split per curiam opinion rejecting the Obama administration's arguments that Leal Garcia's execution would be detrimental to foreign policy to the degree that they needed to introduce a stay. Texas officials executed [KTSM report] Leal Garcia an hour after the decision.




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Ninth Circuit strikes down anti-day laborer ordinance
Erin Bock on September 17, 2011 4:31 PM ET

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[JURIST] The US Court of Appeals for the Ninth Circuit [official website] on Friday struck down [opinion, PDF] a City of Redondo Beach [official website] anti-day laborer ordinance [3-7.1601 text] as an unconstitutional restriction on speech. The ordinance prohibited individuals from standing on a street or highway to solicit "employment, business, or contributions" from passing motorists. The city argued that the purpose of the ordinance was to improve traffic safety and flow at busy intersections. Plaintiffs, which included the National Day Laborer Organizing Network (NDLON) [advocacy website], argued that the ordinance was a violation of the First Amendment [text] and prevented day laborers from seeking employment. Citing Perry Education Association v. Perry Local Educators' Association [Oyez summary], the court stated that the city was free to limit the time, place and manner of expression only if the regulation was narrowly tailored and left open "ample alternative channels of communication." The court determined that the ordinance failed to satisfy the narrow tailoring element because it regulated "significantly more speech" than necessary to achieve the city's stated purpose. The city could achieve the same goals by engaging in less restrictive measures, such as enforcing traffic laws at busy intersections. The Mexican American Legal Defense and Education Fund (MALDEF) [advocacy website], which represented the plaintiffs, applauded the ruling [statement] as a "strong precedent on day laborer rights."
Today's ... opinion resoundingly vindicates the First Amendment rights of day laborers throughout the western United States. The dozens of similar ordinances through out the region that purport to prevent day laborers from speaking on sidewalks are now even more plainly violative of the Constitution. ... The longstanding principle that the right of free speech belongs to everyone has been significantly bolstered by this decision.
The en banc decision reverses a previous panel decision [text, PDF] upholding the ordinance as constitutional.

Rights groups have also asserted the free speech rights of day laborers in their challenge to Arizona's immigration reform bill [SB 1070 text; JURIST news archive], which provides similar restrictions on solicitation. In January, a coalition of six rights groups filed a petition [JURIST report] in the US District Court for the District of Arizona [official website] seeking to block the provisions, arguing that "solicitation speech is expression entitled to full protection under the First Amendment." Last month, the state of Arizona filed a petition for writ of certiorari [JURIST report] with the US Supreme Court [official website] seeking to overturn a lower court decision enjoining four provisions of the immigration law. The provisions were blocked through a preliminary injunction order issued by the Arizona district court in 2010 and upheld [JURIST reports] by the Ninth Circuit in April.




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New York AG seeks dismissal of same-sex marriage lawsuit
Erin Bock on September 17, 2011 2:56 PM ET

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[JURIST] New York Attorney General Eric Schneiderman [official website] on Friday filed a motion to dismiss a lawsuit challenging the validity of the state's newly passed Marriage Equality Act [text, PDF; JURIST report]. The initial complaint [text, PDF], filed by New Yorkers for Constitutional Freedoms (NYCF) [advocacy website] and other groups in the Seventh Judicial District of the New York State Supreme Court [official website], alleged that the law is invalid because state officials failed to follow proper procedure. The groups argued that state officials violated New York's Open Meetings Law [text] and failed to adhere to the New York State Constitution [text, PDF] mandatory three-day waiting period prior to a legislative vote on the matter. In his motion, Schneiderman argued [CBSNewYork/AP report] that the groups did not have standing to sue because they were not harmed by the law and that separation of powers prevents the state judiciary from becoming involved in legislative matters. Schneiderman requested that a hearing take place on the matter on October 17.

In July, Schneiderman filed an amicus curiae brief [JURIST report] challenging the constitutionality of the federal Defense of Marriage Act (DOMA) [text; JURIST news archive], which bars recognition of same-sex marriages. Schneiderman filed the brief in the case of Windsor v. United States, arguing that DOMA violates the Equal Protection Clause [Cornell LII backgrounder] by precluding same-sex couples from the same rights and privileges of opposite-sex couples, and that it intrudes on what had previously been the exclusive right of the states to define marriage. President Barack Obama has expressed support [JURIST report] for the repeal of DOMA and also support for the Respect for Marriage Act [text], which was introduced by Congressional Democrats [JURIST report] in February to repeal DOMA. In March, House Speaker John Boehner (R-OH) [official website] announced that he was launching a legal advisory group [JURIST report] to defend DOMA. Democrats introduced the Respect for Marriage Act following February's announcement by the US Department of Justice (DOJ) [official website] that it will no longer defend the constitutionality [JURIST report] of Section 3 of DOMA, which restricts the federal definition of marriage to heterosexual couples, in court cases challenging the provision. The announcement came just one month after the DOJ filed a brief [JURIST report] with the US Court of Appeals for the First Circuit [official website] defending the constitutionality of DOMA.




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Virginia high court rules insurance companies not liable for global warming
Julia Zebley on September 17, 2011 1:55 PM ET

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[JURIST] The Virginia Supreme Court [official website] ruled [opinion, PDF] Friday that the effects of global warming [JURIST news archive] are not covered by a standard liability insurance policy. The AES Corporation [corporate website], a power company, is facing a suit, Kivalina v. Exxon Mobil Corp., for its contributions to global warming. AES expected that its insurance company, Steadfast, would defend this suit as part of their liability coverage. The Virginia Supreme court ruled that they are under no duty to do so, due to no single "accident" or "occurrence" forcing the suit, but intentional actions.
We have held that an "accident" is commonly understood to mean "an event which creates an effect which is not the natural or probable consequence of the means employed and is not intended, designed, or reasonably anticipated." Kivalina alleges that AES intentionally released tons of carbon dioxide and greenhouse gases into the atmosphere as part of its electricity-generating operations. We have held that "[a]n intentional act is neither an 'occurrence' nor an 'accident' and therefore is not covered by the standard policy." ... If a result is the natural and probable consequence of an insured's intentional act, it is not an accident. However, even though the insured's action starting the chain of events was intentionally performed, when the alleged injury results from an unforeseen cause that is out of the ordinary expectations of a reasonable person, the injury may be covered by an occurrence policy provision. In such a context, the dispositive issue in determining whether an accidental injury occurred is not whether the action undertaken by the insured was intended, but rather whether the resulting harm is alleged to have been a reasonably anticipated consequence of the insured's intentional act. Thus, resolution of the issue of whether Kivalina's Complaint alleges an occurrence covered by the policies turns on whether the Complaint can be construed as alleging that Kivalina's injuries, at least in the alternative, resulted from unforeseen consequences that a reasonable person would not have expected to result from AES's deliberate act of emitting carbon dioxide and greenhouse gases.
The Kivalina v. Exxon Mobil Corp. appeal was filed in the US Court of Appeals for the Ninth Circuit [official website] in November 2009 after a district court's dismissal [opinion text] on standing. The district court ruled that, being a political question, the courts could not intervene. Kivalina, an Alaskan village, is alleging that their village is being destroyed due to rising sea levels, a consequence of global warming.

In July, the UN Security Council [official website] made its first official statement [JURIST report] implicating climate change as a serious threat to world peace and security. At the urging of Germany, which released a Concept Note [text] to lead the discussion, the Security Council debated global warming for the first time since 2007. The US Supreme Court [official website] ruled [JURIST report] in American Electric Power Co. v. Connecticut [Cornell LII backgrounder] that the Environmental Protection Agency (EPA) [official website] and the Clean Air Act [text] displace claims made under the federal common law of nuisance regarding whether electric utilities contributed to global warming. All eight justices agreed in rejecting the claims by eight states, New York City and three private land trusts invoking the federal common law for public nuisance against four power companies and the Tennessee Valley Authority (TVA) [official website]. The plaintiffs sought to control greenhouse gas emissions by creating a annually declining cap on emissions. The court held that to challenge greenhouse gas emissions the plaintiffs may file petitions for rulemaking with the EPA to set emissions standards. Currently, the EPA is undergoing rulemaking on the issue and is set to issue new standards by May 2012.




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Netherlands to propose burqa ban
Michael Haggerson on September 16, 2011 3:01 PM ET

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[JURIST] Dutch Prime Minister Mark Rutte [official profile] announced on Friday that the government will propose legislation to ban burqas [JURIST news archive] and other face coverings. The proposal is being submitted in cooperation with conservative politician Geert Wilders [official website, in Dutch; JURIST news archive] and the Party for Freedom [party website]. The government contends that the proposed legislation does not represent a restriction on religious freedom but rather is an attempt to promote gender equality [Reuters report]. Wilders announced his plans to ban burqas [JURIST report] last October.

A similar ban on burqas recently took effect in Belgium [JURIST report] in July. The French Constitutional Council [official website, in French] approved another similar bill making it illegal to wear burqas [JURIST report] in public last October, and the burqa ban went into effect in April [JURIST report]. A French Muslim couple filed a challenge to the burqa ban [JURIST report] in the European Court of Human Rights [official website] in June. In August 2010 Austria's conservative Freedom Party [party website, in German] called for a special vote [JURIST report] on whether burqas and the construction of minarets should be prohibited. In July 2010 Spain's lower house of parliament, the Congress of Deputies [official website, in Spanish] rejected a proposal to ban burqas and other face veils [JURIST report]. The Parliamentary Assembly of the Council of Europe [official website] voted unanimously to reject [JURIST report] any general prohibition on the wearing of the burqa or other religious clothing.




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ICC opens hearing for DRC war crimes suspect
Sarah Posner on September 16, 2011 2:39 PM ET

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[JURIST] The International Criminal Court (ICC) [official website] on Friday opened the confirmation of charges hearing against accused war criminal Callixte Mbarushimana [case materials]. Mbarushimana, former leader of the Democratic Forces for the Liberation of Rwanda (FDLR) [GlobalSecurity backgrounder], is charged with 13 counts of war crimes and crimes against humanity committed in the Democratic Republic of the Congo (DRC) [BBC backgrounder] in 2009. In September 2010, the ICC issued a warrant [text, PDF] for Mbarushimana's arrest on charges including attacks against civilian population, murder, torture, rape, inhumane acts, inhumane treatment and persecution. On Thursday, ICC Judge Sanji Mmasenono Monageng decided [decision, PDF] that the prosecution could not disclose to the defense the name of the villages referenced by two witnesses or refer to this information at the confirming hearings. During the public confirming hearing, the ICC's Pre-Trial Chamber decides which, if any, charges will brought against Mbarushimana by the prosecution.

In August, Judges for the ICC postponed [JURIST report] the opening of Mbarushimana's confirmation of charges hearing, originally set for August 17, until September 16. In postponing the hearing, the judges wrote, "that disclosure related issues raised just prior to the confirmation have rendered it impossible to fairly conduct the confirmation hearing on the scheduled date." No further reasons were given. Mbarushimana's lawyer, Nick Kaufman, expressed disappointment with the decision. Mbarushimana made his initial appearance [JURIST report] before the ICC in January and denied the charges against him.




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Obama signs patent reform bill
Michael Haggerson on September 16, 2011 1:15 PM ET

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[JURIST] US President Barack Obama [official website] signed the America Invents Act [text, PDF; HR 1249 materials] into law on Friday. The Senate [official website] approved the bill earlier this month [JURIST report], and the House of Representatives [official website] approved the bill in June [JURIST report]. The act represents the first change to the American patent system since 1952 [CNN report]. Major differences include changing the patent system from first-to-invent to first-to-file, allowing the US Patent & Trademark Office (USPTO) [official website] to keep all of the fees generated from patent filing rather than having them diverted by Congress, allowing third parties to introduce relevant material to patent examiners during the patent application review process and removing the "best mode" requirement from patents. The changes are intended to give the USPTO greater autonomy, increase funding so the USPTO can address the substantial patent application backlog [USPTO materials] and decrease the amount of patent litigation. The Coalition for Patent Fairness [advocacy website] stated [press release] that the America Invents Act "is an important step forward for the nation's patent system" and that it will "harmonize America's patent system and allow us to continue to compete in the international marketplace."

Patent holding firms, dubbed "patent trolls" [Filament backgrounder], have been a controversial [Patently-O report] subject for the US patent system to address. Noted patent holding companies include Intellectual Ventures and Asure Software [corporate websites]. Many patent holding companies generate their revenue solely by suing other companies for patent infringement and do not produce anything of their own. The America Invents Act attempts to address the "patent troll" problem by decreasing the number of "junk" patents that are issued via increasing funding to the USPTO and allowing third parties to submit relevant materials during the patent review process. Patent litigation by and against patent holding firms has been especially rampant in the mobile phone business. Last month Google purchased 1,023 patents from IBM [corporate websites] in order to defend itself against smartphone patent-infringement lawsuits [Bloomberg report]. Earlier that month Google also purchased Motorola [corporate website] for USD $12.5 billion, primarily for Motorola's patent library [GeekWire report]. Other recent patent reform includes separate rulings by the US Supreme Court [official website] in June that patents will only be invalidated if the challenging party meets the "clear and convincing evidence" standard [JURIST report] and that the Bayh-Doyle Act [35 USC §§ 200-212], which vests patent rights to universities for inventions from federally funded research, did not give Stanford University [academic website] superior rights to the invention of its employee [JURIST report].




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Spain court sentences former Basque separatist leader for terrorism
Alexandra Malatesta on September 16, 2011 11:19 AM ET

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[JURIST] The Spanish National Court on Thursday sentenced [text, PDF, in Spanish] a former Basque separatist to 10 years in prison for terrorism and trying to resurrect a banned political wing of Euzkadi Ta Askatasuna (ETA) [GlobalSecurity backgrounder; JURIST news archive]. The court found [El Pais report, in Spanish] that Arnaldo Otegi acted on orders from ETA to create an organization that would replace Batasuna [BBC backgrounder; JURIST news archive] and serve as a political tool for ETA [AP report]. Otegi, who continues to be vocal about his ETA support, served 15 months in prison prior to his recent conviction for an ETA-related offense.

The Spanish government continues to actively pursue charges against ETA. In March 2010, the court sentenced a former Basque separatist party leader to two years in prison for promoting terrorism [JURIST report]. Earlier in the month, the court accused [JURIST report] the Venezuelan government of aiding ETA in a plot to assassinate members of the Colombian government in Spain. In February, the Interior Ministry of Spain said [JURIST report] that it took into custody the suspected ETA leader, along with two other people who are believed to be senior members of the group. In January, Spanish Judge Fernando Grande-Marlaska ruled [JURIST report] that ETA had tried three times to assassinate former Spanish prime minister Jose Maria Aznar in 2001 but had failed. In June 2009, the European Court of Human Rights (ECHR) upheld [JURIST report] Spain's ban of Basque political groups Batasuna and Herri Batasuna for their alleged ties to ETA.




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UK passes law limiting arrests under universal jurisdiction
Alexandra Malatesta on September 16, 2011 10:35 AM ET

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[JURIST] The UK Parliament [official website] on Thursday approved the Police Reform and Social Responsibility Bill [materials], making it more difficult for ordinary citizens to obtain arrest warrants for suspected war criminals present in the UK. The controversial act [AP report] removes the exclusive power of granting arrest warrants from local magistrates, requiring that all such warrants receive approval from the Director of Public Prosecutions (DPP) [official profile]. Justice Secretary Kenneth Clarke of the UK Ministry of Justice said [press release] about the bill, "[w]e are clear about our international obligations and these new changes to existing law will ensure the balance is struck between ensuring those who are accused of such heinous crimes do not escape justice and that universal jurisdiction cases are only proceeded with on the basis of solid evidence that is likely to lead to a successful prosecution." The amendment is seen as a move by the UK government to improve relations with foreign countries such as China and Israel, after several government officials were forced to cancel trips to the UK out of fears of being arrested. The bill states:
Where a person who is not a public prosecutor lays an information before a justice of the peace in respect of an offense to which this subsection applies, no warrant shall be issued under this section without the consent of the Director of Public Prosecutions. ... Subsection (4A) applies to (a) a qualifying offense which is alleged to have been committed outside the United Kingdom, or (b) an ancillary offense relating to a qualifying offense where it is alleged that the qualifying offense was, or would have been, committed outside the United Kingdom.
The bill was proposed [JURIST report] last December.

UK officials had promised Israel that a change in the law was coming for some time. Former UK attorney general Patricia Janet Scotland gave a speech early this year at the Hebrew University of Jerusalem, stating that UK officials were working to resolve the issue [press release] and protect senior officials traveling to the UK. In December 2009, former Israeli foreign minister Tzipi Livni [official website, in Hebrew] canceled a UK trip [JURIST report] after a British magistrate court issued, and later revoked, an arrest warrant for her on war crimes charges relating to Israel's Gaza offensive [JURIST news archive]. In October 2009, Vice Prime Minister Moshe Yaalon called off [JURIST report] a scheduled trip to the UK after legal advisers from the Israeli Ministry of Foreign Affairs [official website] said that he may be arrested over his involvement in a 2002 airstrike that killed a Hamas leader and 14 civilians.




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House GOP members attempting to delay 'Don't Ask Don't Tell' repeal
Hillary Stemple on September 16, 2011 9:06 AM ET

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[JURIST] Two Republican Congressmen have sent a letter [text; PDF] to Defense Secretary Leon Panetta [official profile] asking to delay the repeal of "Don't Ask, Don't Tell" (DADT) [10 USC § 654; JURIST news archive], scheduled to go into effect next Tuesday. Congressman Buck McKeon (R-CA), the Chairman of the House Armed Services Committee, and Congressman Joe Wilson (R-SC) [official websites], Chairman of the Military Personnel Subcommittee, indicated that they have requested copies of the regulations and procedures being applied to the law's repeal but have not yet received the information. They state that the failure to meet the committee's request leads them to believe that the policies and regulations to implement repeal are either incomplete or inaccurate. McKeon and Wilson also noted that they find it "unconscionable" that the policies and regulations surrounding repeal of DADT remain unpublished. According to the letter, some of the regulations necessary for repeal must go through a notice and comment period which is not scheduled to begin until September 20. McKeon and Wilson indicate that allowing repeal to go forward before the notice and comment period has been completed would contravene the July certification of the repeal [JURIST report]. The letter asks Panetta to delay the effective date of the DADT repeal until "[Department of Defense] managers have fully resolved all the questions emerging from the review and comment process."

Earlier this month, lawyers for the US Department of Justice (DOJ) asked the US Court of Appeals for the Ninth Circuit [official websites] to overturn a ruling that the DADT policy is a violation of service members' constitutional rights, arguing that the impendency of repeal renders the original court decision moot. In July, the Ninth Circuit ruled that DADT would remain partially in effect [JURIST report] during the 60 days prior to its newly-scheduled repeal. The court effectively reiterated its order issued [JURIST report] the previous week, in which it reinstated DADT but explicitly ordered the military to refrain from investigating, penalizing or discharging any of its members as originally provided for under the policy. Hours earlier, President Barack Obama [official website], Panetta and the Joint Chiefs of Staff certified DADT's repeal, scheduling the policy to end September 20. Obama signed the bill to repeal DADT [JURIST report] in December. The Don't Ask, Don't Tell Repeal Act of 2010 [HR 2965 materials] was approved in the Senate in December after being passed [JURIST reports] by the House of Representatives the week before. Since the enactment of DADT in 1993, approximately 13,000 servicemen and women have been discharged from the armed forces as a result of the policy.




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Egypt court sentences former Mubarak associates on corruption charges
Hillary Stemple on September 16, 2011 8:14 AM ET

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[JURIST] An Egyptian criminal court on Thursday sentenced three associates of former president Hosni Mubarak [JURIST news archive] to prison and ordered them to pay fines after they were found guilty on charges of corruption that occurred under the Mubarak regime. Ahmed Ezz, a steel tycoon and former ranking member of the now-dissolved National Democratic Party [JURIST report], was accused of obtaining low cost materials necessary to the steel industry by illegally manipulating [LAT report] state-owned businesses. The former head of Egyptian industrial development, Amr Assal, was accused of collaborating with Ezz and granting licenses [Ahram online report] to steel companies that were without merit. Former trade minister Rachid Mohamed Rachid, was also sentenced for collaborating with Ezz by granting licenses without receiving payment and for misusing public funds [Reuters report]. Rachid was also sentenced to prison in June for squandering public funds and profiteering [JURIST report]. Ezz and Assal were both ordered to serve 10 years in prison and were ordered to pay fines totaling USD $111 million. The sentencing judge indicated that Ezz and Assal's fine represented the public funds they had wasted. Rachid was sentenced in absentia to a 15-year prison term and was ordered to pay a USD $237 million fine. The men do have the option of appealing their sentences to the Court of Cassation.

The men's sentences were handed down as Egyptians await the outcome of the trial against Mubarak. Mubarak's trial began on August 3 [JURIST report] with Mubarak and his sons pleading not guilty to all charges of corruption and murder. Presiding Judge Ahmed Rifaat last month decided to end live TV broadcasts [JURIST report] of subsequent proceedings amid protests from the families of victims and praise from several courtroom lawyers who opposed the broadcasts. Officials chose a new location for Mubarak's trial for security reasons after reporting [JURIST reports] that the trial would take place at a convention center in downtown Cairo. In July, an Egyptian criminal court postponed the trial [JURIST report] of former interior minister Habib el-Adly, who also faces murder charges in relation to the pro-democracy demonstrations, so it would coincide with Mubarak's trial. In March, a commission of Arab and Egyptian human rights groups accused Mubarak [JURIST report] and the police of murdering protesters during the demonstrations in Egypt. Mubarak could face the death penalty [JURIST report] if convicted of ordering attacks on protesters. Amnesty International (AI) [advocacy website] reported that at least 840 people were killed [JURIST report] and more than 6,000 injured during the Egyptian protests.




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Federal judge blocks Florida law restricting doctors from asking patients about firearms
John Paul Putney on September 16, 2011 7:03 AM ET

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[JURIST] A judge for the US District Court for the Southern District of Florida [official website] on Wednesday temporarily enjoined [ruling, PDF] a Florida law restricting what physicians can ask or say about firearms to their patients as violative of the doctors' First Amendment rights. Under the Firearm Owners' Privacy Act (FOPA) [text], violating doctors risk losing their medical license and up to a $10,000 fine for "asking questions concerning the ownership of a firearm" or "unnecessarily harassing a patient about firearm ownership." Judge Marcia Cooke rejected Florida's argument that the law was about protecting Second Amendment [text; JURIST news archive] rights:
This case concerns one of our Constitution's most precious rights—the freedom of speech. "Open speech by a private citizen on a matter of public importance lies at the heart of expression subject to protection by the First Amendment." Courts have also emphasized the importance of the free flow of truthful, non-misleading information within the doctor-patient relationship. The State has attempted to inveigle this Court to cast this matter as a Second Amendment case. Despite the State's insistence that the right to "keep arms" is the primary constitutional right at issue in this litigation, a plain reading of the statute reveals that this law in no way affects such rights. The right to keep arms refers to the right to "retain," "to have in custody," and "to hold" weapons, including firearms. A practitioner who counsels a patient on firearm safety, even when entirely irrelevant to medical care or safety, does not affect nor interfere with the patient's right to continue to own, possess, or use firearms. The Act—directed at ensuring patients' privacy rights concerning firearm ownership—does not implicate rights that the Second Amendment protects.
The American Academy of Pediatrics (AAP) [advocacy website], also a party to the lawsuit to block the law, welcomed [press release, PDF] the ruling. FOPA took effect in June and is the first law of its kind in the US [AP report]. The temporary injunction seems likely to become permanent [Reuters report].

Gun control laws remain a contentious issue across the US. Previously, states took more or less restrictive approaches to gun control based on local state legislation. In June 2008, however, the US Supreme Court [official website] ruled in District of Columbia v. Heller [opinion, PDF; JURIST report] that the Second Amendment protects the right to possess a handgun for the purpose of self-defense, overturning the District of Columbia's restrictive firearms law. Two years later, in June 2010, the US Supreme Court ruled in McDonald v. Chicago [opinion; JURIST report] that the Second Amendment applies to states and municipalities as well as the federal government, thereby overturning Chicago's ban on handguns and raising considerable uncertainty about what amount of regulations of firearms was permissible. In July 2010, just four days after the Supreme Court's ruling in McDonald, the Chicago City Council [official website] unanimously approved a new gun control ordinance that bans gun shops in Chicago and prohibits gun owners from stepping outside their homes, including porches and garages, with a handgun. Shortly thereafter, a group of Chicago citizens, supported by both the National Rifle Association and the National Association of Firearm Retailers [advocacy websites], filed suit against the city [JURIST report] claiming the new gun control ordinance infringes on their constitutional rights.




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HRW report criticizes ICC prosecutions
Dan Taglioli on September 15, 2011 4:19 PM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] on Thursday called on the International Criminal Court (ICC) [official website] to correct an imbalance in its investigations and prosecutions of war crimes and human rights violations. In a 50-page publication titled "Unfinished Business" [report, text; press release], HRW assessed the choice of cases made by the Office of the Prosecutor (OTP) [official website] in its first five investigations, claiming that the resulting prosecutions do not go "far enough to ensure that justice delivered by the ICC will resonate with concerns of victims and affected communities." The court's jurisdiction may be triggered in one of three ways—state parties or the UN Security Council [official website] can refer a specific set of events termed a "situation" to the ICC prosecutor, or the OTP can seek on his own motion authorization by a pre-trial chamber of ICC judges to open an investigation. Based on HRW country expertise and close monitoring of the ICC over the past eight years, the report concludes that to safeguard the ICC's independence and impartiality, the OTP needs to investigate and bring to trial individuals responsible for some of the world's gravest crimes, especially government officials. For example, in Uganda and Democratic Republic of Congo (DRC), ICC investigations have targeted rebel groups but have not yielded charges against government officials and armed forces widely alleged to have committed serious human rights abuses. Without such prosecutions, or clear and public explanations as to why they are not being pursued, the ICC's perceived independence and impartiality is undermined worldwide. The report goes on to state that this is a critical time to correct such perceptions through new investigations, as ICC member states will elect a new prosecutor in December. The current ICC prosecutor, Luis Moreno-Ocampo [official profile], was elected to a nine-year term in 2003. The HRW report was prepared by Elizabeth Evenson [official profile], senior counsel in the humanitarian group's International Justice Program.

The ICC is the world's first permanent court mandated to bring to justice perpetrators of war crimes, crimes against humanity and genocide when national courts are unable or unwilling to do so. The ICC treaty, known as the Rome Statute, entered into force in 2002, four years after 120 states adopted it during the Rome Conference. This month Ocampo announced that he is seeking assistance [JURIST report] from INTERPOL [official website] to locate and arrest former Libyan leader Muammar Gaddafi [BBC profile; JURIST news archive], as the ICC has issued arrest warrants [JURIST report] for Gaddafi, his son and his brother-in-law for alleged crimes against humanity. Also this month the court began hearings in Kenya's post-election violence cases against the "Ocampo Six" [JURIST reports] for incitement of violence during and after the 2007 Kenyan elections. The HRW report called these investigations into Kenyan government officials a "welcomed shift from past practice" and a "marked contrast to Congo" where prosecution delays inadvertently may have actually worsened ethnic tensions. However, it is notable that last month the ICC did conclude its first war crimes trial [JURIST report] with the prosecution of a Congo militia leader charged with enlisting child soldiers into his militia, one which is believed to have committed large-scale human rights abuses in DRC's violent Ituri district. A verdict in the case is expected in early 2012. In addition to the African investigations in Congo, northern Uganda, Libya and Kenya, along with others in the Central African Republic and the Darfur region of Sudan, the OTP is looking at situations in Afghanistan, Colombia, Georgia, Guinea, Honduras, Nigeria and South Korea. The Palestinian National Authority also has petitioned the ICC prosecutor to accept jurisdiction over alleged crimes in Gaza.




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Federal judge rules accused plane bomber's hospital statements admissible
Michael Haggerson on September 15, 2011 2:38 PM ET

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[JURIST] A judge for the US District Court for the Eastern District of Michigan [official website] ruled [case materials] Thursday that statements made by Nigerian national Umar Farouk Abdulmutallab [BBC profile; JURIST news archive] while in the hospital following his alleged attempt to detonate a bomb on Northwest Airlines Flight 253 are admissible. Abdulmutallab argued that the conduct of the FBI agents was coercive because they interviewed him while under the effects of painkillers [text, PDF] and did not give him Miranda warnings. The government responded that Abdulmutallab's statements were voluntary [text, PDF] because the fact that an individual was on painkillers alone does not necessitate a finding of involuntariness and there was no evidence of any type of coercive conduct by the FBI agents. The government further argued that the lack of Miranda warnings was justified by the fact that Abdulmutallab claimed that he was trained by al Qaeda and the agents feared that an immediate interview was necessary to ascertain whether there were other imminent attacks planned. Judge Nancy Edmunds agreed with the government [Detroit News report] that national security concerns outweighed the need to give Abdulmutallab his Miranda warnings and testimony from hospital staff established that he was lucid and not confused, despite being administered a painkiller. The trial is set to begin October 11.

The use of full body scanners [TSA backgrounder] at airports is largely a response to Abdulmutallab's failed bombing attempt. In July the US Court of Appeals for the District of Columbia Circuit [official website] rejected a constitutional challenge [JURIST report] to the use of the controversial full body scanners by holding that the use of the scanners does not constitute an unreasonable search. In December a federal grand jury charged Abdulmutallab with two new counts of conspiracy and firearm possession, in addition to the six previous charges [JURIST reports] of attempted use of a weapon of mass destruction, attempted murder within the special aircraft jurisdiction of the US, willful attempt to destroy or wreck an aircraft, willfully placing a destructive device on an aircraft, use of a firearm/destructive device during and in relation to a crime of violence, and possession of a firearm/destructive device in furtherance of a crime of violence. In September 2010 Abdulmutallab fired his lawyers and chose to represent himself [JURIST report]. Abdulmutallab plead not guilty to all charges [JURIST report] in January 2010.




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Malaysia to repeal strict laws allowing detention without trial
Andrea Bottorff on September 15, 2011 2:01 PM ET

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[JURIST] Malaysian Prime Minister Najib Razak [official profile] announced on Thursday that the government would repeal two strict security laws that had allowed extended detention of suspects without trial, as well as review other laws dealing with freedom of the press. The government will abolish the Internal Security Act (ISA) of 1960 [text, PDF] and the Banishment Act of 1959 [text, PDF]. The ISA allowed the prime minister to order the imprisonment of individuals deemed to be a threat to national security for a period of up to two years without a trial. The Banishment Act granted the prime minister the right to expel any non-citizen from the country. Razak also announced that the government will carefully review the Restricted Residence Act of 1933, Printing Presses and Publications Act of 1984 and Section 27 of the Police Act of 1967 [texts, PDFs], which allowed police supervision of suspects and regulated newspapers and the right of citizens to assemble peacefully. Some see the actions as movement toward a more democratic government [The Sun Daily report], while others warn that the announcement was politically motivated and not a strong sign of reform.

Malaysia has been criticized for alleged rights violations. For example, last week, the three-judge Malaysian Federal Court [official website] ruled unanimously against indigenous people [JURIST report] fighting against the Sarawak government's seizure of land to build a dam. The court had agreed to hear the suit [JURIST report] in March. Two of the judges refused to rule on the constitutionality of the land takings, saying that the case should have gone to arbitration, and the third judge ruled that the takings were constitutional. The Center for Orang Asli Concerns [advocacy website] expressed disappointment in the ruling, which it said failed to uphold citizens' rights. There are currently more than 100 unresolved land rights suits filed by indigenous people in Malaysia's lower courts.




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Tunisia to seek return of citizens held at Guantanamo prison
Dan Taglioli on September 15, 2011 1:45 PM ET

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[JURIST] Tunisia announced its intention Wednesday to plead for the return of its remaining citizens being held at the Guantanamo Bay [JURIST news archive] detention facility. A Justice Ministry representative, speaking at an awareness conference in Tunis, called for the repatriation [AP report] of the five Tunisian detainees still being held at the prison and indicated the nation's intention to send a mission to the US to achieve their release. The conference was organized by Reprieve [advocacy website; press release], a British humanitarian group and legal action charity that seeks to enforce human rights and due process for prisoners worldwide. In the past, such groups had been against repatriation due to reports of torture and abusive interrogation [JURIST reports] upon prisoners' return to Tunisia under the regime of ousted dictator Zine Al Abidine Ben Ali [BBC profile; JURIST news archive]. However, with the fall of the former regime and its reputation of human rights abuses, Reprieve claims there is no longer a reason to hold the remaining prisoners:
On the night the Tunisian people successfully overthrew Ben Ali's dictatorship, five Tunisian men had just spent their ninth anniversary of imprisonment in the notorious US naval base. To date, they have had neither charge nor trial. Members of the interim government, international and national human rights activists, lawyers, ex-detainees and family members have all pledged their support for this cause. Today's conference will examine how this support can be turned into action.
There have been 12 Tunisians imprisoned at the Guantanamo facility [NYT backgrounder] since it opened in 2002, two of whom were returned to Tunisia and imprisoned [JURIST reports] in 2007. The other five released detainees have been extradited to third countries [JURIST reports] for various reasons.

The continued operation of Guantanamo Bay remains controversial. In February, JURIST Guest Columnist Naureen Shah [university profile] from the Human Rights Institute at Columbia Law School wrote that some Guantanamo detainees cannot go home [JURIST op-ed], and the US should design smarter monitoring protocols, let courts and the public test decide whether diplomatic assurances can prevent abuse, and resettle detainees who face too great a risk of torture. In January, Human Rights Watch (HRW) [advocacy website] criticized US President Barack Obama for failing to shut down the facility altogether, 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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UN extends terms for international tribunal prosecutors until December 2014
Andrea Bottorff on September 15, 2011 12:56 PM ET

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[JURIST] The UN Security Council [official website] on Wednesday extended the terms for prosecutors from the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) [official websites] until December 31, 2014. In unanimously adopting resolutions 2006 and 2007 [press releases], the Security Council extended the terms of prosecutors Serge Brammertz [official profile] and Hassan Bubacar Jallow [Cornell profile]. Brammertz has served as Prosecutor of the ICTY since 2008, and Jallow has served as Prosecutor of the ICTR since 2003. The Security Counsel emphasized that both terms will expire when the tribunals complete their work [UN News Centre] and urged both tribunals to complete their cases by December 2014.

The tribunals, created by the UN in 1993 and 1994, have been working to complete their caseloads. Last week, the ICTY convicted [JURIST report] ex-Yugoslav army chief Momcilo Perisic [JURIST news archive] for crimes against humanity and war crimes committed during the wars in Bosnia and Croatia, including his participation in the Srebrenica massacre [JURIST news archive]. Ratko Mladic [JURIST news archive], with whom Perisic allegedly collaborated, is still awaiting trial for genocide at The Hague. The ICTR also continues to try suspects for crimes occurring during the 1994 Rwandan genocide [JURIST news archive]. Earlier this year, the ICTR transferred its first case [JURIST report] to a Rwandan court, saying that Rwanda was capable of accepting and prosecuting the case of former Rwandan pastor Jean-Bosco Uwinkindi [case materials].




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France appeals court upholds acquittal of ex-PM
Erin Bock on September 15, 2011 8:50 AM ET

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[JURIST] The Court of Appeal of Paris [official website, in French] on Wednesday affirmed the acquittal [press release, in French] of former prime minister Dominique de Villepin [BBC profile; JURIST news archive] for allegedly taking part in a smear campaign known as the Clearstream Affair [BBC backgrounder]. Villepin was charged with "complicity in false accusation" for his alleged role in a plot to defame several French public figures, including current President Nicolas Sarkozy [official profile, in French; JURIST news archive]. Prosecutors claimed Villepin came into the possession of a list of secret bank accounts [AP report] that held bribe money relating to illegal arms sales and named Sarkozy and several others as the owners of the accounts. The list was later determined to be fake and prosecutors argued that Villepin should have brought the list to the attention of judicial authorities earlier than he did. Villepin applauded the judiciary for remaining independent and "resist[ing] political pressure" in affirming the decision. He also relayed his hope that the decision would help make France "less vulnerable to rumors and slander" and reiterated his intention to run in the upcoming 2012 presidential election.

A French court acquitted Villepin of all charges [JURIST report] in January 2010. Sarkozy indicated that he would not appeal the verdict, and prosecutors filed an appeal the next day [JURIST report] without Sarkozy listed as a civil party. Villepin was ordered to stand trial [JURIST report] in November 2008, and his trial began in September 2009. Before his acquittal, de Villepin had faced the possibility of an 18-month suspended prison sentence and a €45,000 fine. Villepin's political image was tainted by the allegations as well as by his advance of an unpopular youth labor law [JURIST news archive] during his time as prime minister.




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Netherlands court finds country liable for 1947 Indonesia massacre claims
Andrea Bottorff on September 14, 2011 12:21 PM ET

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[JURIST] The District Court of The Hague [official website, in Dutch] on Wednesday ruled that the Dutch government must pay damages [court materials, in Dutch] to one survivor and seven widows of men killed by Dutch troops during a 1947 massacre in Indonesia [NRC Handelsblad backgrounder]. The court ruled that the Dutch government is responsible for killings committed in the village of Rawagedeh, now called Balongsari, during the 1945-49 Indonesian War for Independence [timeline], where Dutch troops allegedly executed more than 400 villagers. The Dutch government claimed that the statute of limitations barred the claims, but the court ruled the widows and survivor were able to bring their claims and receive compensation because they were direct victims of war crimes. However, the limitation period barred the claim of a daughter of one of the men killed. The court did not set the amount of compensation, and it is unclear whether the Dutch government will appeal the decision.

A Dutch court ruled in 2008 in favor of the government, finding that the statute of limitations barred [JURIST report] the plaintiffs' claims. Indonesian officials say that Dutch soldiers shot 431 people as they tried to escape the massacre, while a 1969 Dutch investigation reported that 150 people were killed. In 2009, the Dutch government, which has never apologized for the massacre, allegedly donated 850,000 euros to Balongsari, although the village claims that it has not received the money [RNW report]. The Netherlands colonized Indonesia, then called the Dutch East Indies, from the late sixteenth century until 1949.




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World Bank recognizes new Libya regime as it vows to investigate rights abuses
Zach Zagger on September 14, 2011 11:48 AM ET

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[JURIST] The new ruling regime in Libya vowed to investigate allegations of human rights abuses Wednesday after the World Bank [official website] recognized the newly formed National Transitional Council (NTC) [website] as the official government. The NTC was responding [AFP report] to an Amnesty International [advocacy website] report published Tuesday [JURIST report] alleging that both sides of the Libya conflict [JURIST backgrounder] are responsible for human rights abuses and warning the NTC to act quickly to investigate these allegations. On Tuesday the World Bank said it would engage the NTC as the official Libya government [press release] and is helping to rebuild the economy and infrastructure of the nation:
As Libya begins its recovery from conflict, the World Bank has been asked to lead the effort in the areas of public expenditure and financial management, infrastructure repair, job creation for young people and service delivery. The World Bank joins the United Nations and the European Union as one of the three institutions invited by Libya's [NTC] to coordinate assistance for the north African nation as it forges a path forward after months of violent conflict.
The World Bank has been asked to help restore water, energy and transportation services and, in cooperation with the International Monetary Fund [official website], help repair the national budget and the banking sector.

The NTC assured world leaders last week that Libya will be a society of tolerance and respect [JURIST report] for the rule of law. During a meeting [BBC report] in Paris chaired by French President Nicolas Sarkozy, NTC leader Mustafa Abdel Jalil [BBC profiles] vowed to administer elections and draft a new constitution for Libya within 18 months. However, allegations of war crimes and human rights violations have been widespread during the Libya conflict. On Sunday, UN Secretary-General Ban Ki-Moon [official profile] sent a letter [text, PDF] to the UN Security Council (UNSC) [official website] seeking the formation of a mission to provide assistance [JURIST report] to the new post-conflict authorities in Libya. Last month, Physicians for Human Rights (PHR) [advocacy website] reported [text, PDF] Libyan troops used children as human shields [JURIST report] to deter attacks by the North Atlantic Treaty Organization (NATO) [official website]. Also last month, Libyan Prime Minister Al Baghdad Ali Al-Mahmoudi requested that the UN create a "high-level commission" to investigate alleged human rights abuses [JURIST report] by NATO. In June, the UN Human Rights Council (UNHRC) [official website] decided to extend a mandate to an investigative panel instructing it to continue its investigation of human rights abuses in Libya, after it published a 92-page report [JURIST reports] claiming authorities committed multiple crimes against humanity.

See JURIST's Feature on the Libya conflict for more.




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France prosecutors probe accusations against former president, PM
Ashley Hileman on September 14, 2011 11:34 AM ET

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[JURIST] The Paris prosecutor's office on Tuesday began an inquiry into allegations against former French president Jacques Chirac [BBC profile; JURIST news archive] and his prime minister Dominique de Villepin over the receipt of millions of dollars from African leaders. The accusations against the two former French officials were made by a lawyer who worked as an aide to Chirac and claims to have participated in the passage of over $20 million in cash [Reuters report] from African leaders to be used as political donations. All of the alleged donations came from leaders of former French colonies. An investigation will also be launched by the Paris Bar into the actions taken by the accuser as his involvement with the passage of these funds is unethical within the legal profession. Chirac is also currently the subject of a corruption trial which the French Court of Cassation [official website, in French] ruled in May can continue, rejecting a constitutional challenge [JURIST report] brought by one of his co-defendants. Chirac is being tried for allegedly misusing funds during his time as Paris mayor in 1990. Meanwhile, Villepin, who was accused of participating in a smear campaign [AP report] against current President Nicolas Sarkozy [official website, in French], was recently acquitted.

Other former French officials have also been accused of scandals and subjected to investigations as a result. Last month, a commission of the Court of Cassation ordered an investigation [JURIST report] into the newly appointed Managing Director of the International Monetary Fund (IMF) [official website], Christine Lagarde, for her involvement in a $400 million arbitration agreement with French businessman Bernard Tapie. Tapie won a settlement with state-owned bank Credit Lyonnais [official website, in French] in 2008 when Lagarde was acting as France's Finance Minister. A senior prosecutor contends that Lagarde "overstepped her authority" in allowing the arbitration to proceed because the controversy involved a state-owned institution. Furthermore, an investigation would be needed to determine whether Lagarde sufficiently probed the neutrality of one of the arbitration judges. The investigation will be ongoing for several months, after which a decision will be made about whether to send the case to trial.




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Federal judge rules mandatory health insurance provision unconstitutional
Ashley Hileman on September 14, 2011 9:56 AM ET

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[JURIST] A judge for the US District Court for the Middle District of Pennsylvania [official website] ruled [opinion, PDF] Tuesday that a provision of the Patient Protection and Affordable Care Act (PPACA) [HR 3590 text; JURIST backgrounder] requiring individuals to purchase health insurance is unconstitutional. The challenge was brought by a self-employed couple that would be subject to the minimum coverage provision, arguing that Congress' Commerce Clause powers "do not comprehend the power to command individuals to engage in commerce in the first instance." The government contends that the "uniqueness" of the health care market and insurance, in that they entail payment for services before services are rendered, justifies the provision. In its analysis, the court, recognizing the split in authority that currently exists on the issue of mandated insurance coverage, looked to two recent decisions that endorsed different sides of argument and noted that both concur on the point that "the Health Care Act has no equivalent in Commerce Clause jurisprudence." This court also concluded that the provision had no equivalent and as a result, was unconstitutional. Judge Christopher Conner, writing for the court, addressed the novelty of the issue:
Moreover, the court has been unable to find any precedent, and the parties have been unable to direct the court to any precedent, that permits the expansion of the Commerce Clause authority to regulate individuals prior to their engagement in commercial activity on the basis of the unique nature of the market being regulated. This court is bound by the principles of stare decisis and must reasonably interpret, not create, law. This court's interpretation of existing precedent, including Lopez and Morrison, leads the court to the conclusion that the Supreme Court would not construe the Commerce power to have such expansive reach. The extension of the Commerce Clause in the manner the government suggests is unsupported by precedent and therefore beyond the scope of this court's proper function to grant.
The court also found the minimum coverage provision was closely tied to two other provisions of the PPACA—the guaranteed issue and preexisting condition health insurance reforms—which must then also be severed.

Given the split in decisions being handed down, the US Supreme Court [official website] is expected to weigh in next year. Last week, the US Court of Appeals for the Fourth Circuit [official website] dismissed two lawsuits [JURIST report] challenging the constitutionality of the PPACA. In Virginia v. Sebelius, the court held that Virginia lacked standing to sue and vacated the judgment of the district court [JURIST report], remanding the case with instructions to dismiss the suit for lack of subject-matter jurisdiction. In Liberty University v. Geithner, the court ruled that the suit was filed prematurely, also vacating the lower court ruling [JURIST report], which had declared the act constitutional. Although the Fourth Circuit dismissed the cases without deciding the issue of constitutionality, other federal courts have not hesitated to address it. Last month, the US Court of Appeals for the Eleventh Circuit [official website] struck down the individual mandate [JURIST report] as unconstitutional, creating a circuit split. The US Court of Appeals for the Sixth Circuit [official website] had upheld the law in June, and that ruling was appealed [JURIST reports] to the Supreme Court by the Thomas More Law Center (TMLC) [advocacy website].




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Khodorkovsky was illegally detained: Russia high court
Julia Zebley on September 14, 2011 8:52 AM ET

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[JURIST] The Supreme Court of Russia [official website, in Russian] ruled [press release, in Russian] Tuesday that former oil executive Mikhail Khodorkovsky [official website, in Russian; JURIST news archive] and his business partner Platon Lebedev were illegally detained for their trial last year, a symbolic victory for the pair that will have no effect on their sentences. Although the two were already convicted and in jail for other charges, authorities moved them to pre-trial holding areas where indicted suspects await trial. Although Khodorkovsky's lawyer said the verdict was helpful, it will not have a significant affect on his clients' lives: "Unfortunately, no impact. They will say something like: 'Sorry, we were wrong. And the fact that you stayed in jail a few extra months—well, well, it happens. Maybe we'll even give you small compensation in this regard will issue. But everything else—has not been in our power.'" Khodorkovsky's legal team also announced that the European Court of Human Rights (ECHR) [official website] will be ruling on judgments against Khodorkovsky and Yukos Oil [press release] on September 20.

The Russian Investigative Committee [official website, in Russian] said in June that there was no evidence of undue pressure [JURIST report] by superiors on the judge that sentenced Khodorkovsky. Also that month, Khodorkovsky reissued his appeal for release on parole [JURIST report] after the first attempt was returned due to insufficient documentation. Khodorkovsky has served half of a 13-year sentence, reduced by a year [JURIST report] last month, for fraud, theft and money laundering, which under Russian law makes him eligible for parole. In December, Judge Viktor Danilkin sentenced [JURIST report] Khodorkovsky and Lebedev to six additional years in prison, extending their imprisonment to a total of 14 years. Their defense counsel staunchly criticized the ruling, claiming [press release] that the court blocked significant amounts of testimony and evidence submitted by the defense and systematically quashed objections to their omission. The verdict drew vehement international criticism [JURIST report], including from US Secretary of State Hillary Clinton [official profile], who said [press release] that the ruling "raises serious questions about selective prosecution."




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UN rights office calls for immediate intervention in Yemen humanitarian crisis
Julia Zebley on September 14, 2011 7:32 AM ET

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[JURIST] A delegation from the UN Office of the High Commissioner for Human Rights (OHCHR) [official website] on Tuesday released a report [text, PDF] announcing a humanitarian crisis in Yemen [press release] that requires immediate intervention. The delegation was sent to Yemen in late June [JURIST report] to gather information about the country's human rights situation by meeting with officials, civilians, members of opposition groups, religious leaders and victims of rights violations. Preliminary findings were released in July [JURIST report]. The OHCHR verified that the Yemeni government is firing on peaceful protesters as well as warring against armed rebels, and that as a tactic of war, both sides are withholding water, fuel and electricity from civilians:
The Mission notes the danger that the protests might become increasingly radicalized and more violent in response to the excessive use of lethal force by the government, and the growing involvement of, and intimidation by, armed elements within the demonstrations. In essence violence has led to more violence and it is a tribute to the street protesters that they have sought to maintain their peaceful character despite the heavy price in loss of life and in severe injuries that has been paid thus far. On the other hand, the Mission is alarmed by the deteriorating humanitarian situation, which is negatively affecting most Yemenis, but in particular the poorest and most vulnerable, such as children, IDPs and refugees. Isolated acts of sabotage cannot account for all the suffering witnessed by or reported to the Mission throughout the country and the availability of electricity, fuel, cooking gas, water and other basic services should not be misused to punish the entire population. The Mission is of the view that calls for investigations and prosecutions will be undermined unless urgent measures are undertaken to ensure the independence and integrity of the judiciary and to provide them with sufficient resources. Additionally, given the lack of confidence by many Yemenis in the judiciary to conduct impartial investigations into human rights abuses there is a need for international, independent and impartial investigations to take place.
The report also listed a number of human rights atrocities, including the government shooting at ambulances and preventing activists from receiving medical treatment, utilizing child soldiers and illegally detaining, torturing and killing an inestimable number of adults and children. The report ended with a plea to both the armed rebels and the government of Yemen to end the violence and called on the international community to condemn Yemen's action and provide humanitarian and financial relief to the nation.

The delegation's report comes as many rights groups have criticized Yemen for its handling of pro-democracy protests that have persisted since February. Amnesty International (AI) [advocacy website] released a report [text; PDF] in April urging the international community to pressure Yemeni authorities to investigate protestor deaths. Just days earlier, the OHCHR urged the Yemeni government [JURIST report] to stop 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. Saleh, who agreed to step down in April [JURIST report], and his party, the General People's Congress (GPC), had 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. 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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North Carolina legislature approves ballot measure to ban same-sex marriage
Sarah Posner on September 13, 2011 2:43 PM ET

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[JURIST] The North Carolina Legislature [official website] on Tuesday approved putting a constitutional amendment [SB 514, PDF] to ban same-sex marriage on a statewide ballot to be voted on in May. The Republican-controlled Senate [official website] voted 30-16 to place the proposed amendment on the ballot. The Senate voted on the measure after the House [official website] on Monday voted 75-42 to approve the proposed amendment after over three hours of debate. Voters will decide in May whether the proposed amendment will be added to the state's constitution. Although North Carolina has a statutory definition of marriage as between a man and a woman, it is the only southern state that does not have a ban on same-sex marriage. The proposed amendment would add to the constitution:
Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State. This section does not prohibit a private party f om entering into contracts with another private party; nor does this section prohibit courts from adjudicating the rights of private parties pursuant to such contracts.
There are 30 states [AP report] that currently have similar same-sex marriage bans as part of their state constitutions.

Same-sex marriage remains a controversial issue throughout the US. Earlier this week the US Court of Appeals for the Ninth Circuit [official website] ruled [JURIST report] that Arizona House Bill 2013, a law rescinding health benefits for same-sex couples in the public sector, is in violation of the equal protection clause of the US Constitution. In May, the Minnesota Legislature approved [JURIST report] adding a constitutional amendment to ban same-sex marriage to the November 2012 ballot. In April, the Indiana Senate overwhelmingly approved an amendment to the state constitution that would ban same-sex marriage or any "substantially similar" status, and the Wyoming Senate in February approved a bill that would void in Wyoming any same-sex marriages and civil unions [JURIST reports] performed in other jurisdictions.




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Authors groups sue over digitizing copyright-protected books
Sarah Posner on September 13, 2011 1:20 PM ET

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[JURIST] Three authors groups on Monday sued [complaint, PDF; press release] HathiTrust [official website] and five universities in the US District Court for the Southern District of New York [official website] over the digitizing of millions of copyright-protected books. The universities received permission from Google [corporate website] to scan approximately 7 million copyright-protected books and started a program allowing unlimited downloads for students and faculty of certain protected book deemed "orphans" by the university. The first group of 27 "orphan" books is scheduled to be released on October 13 to approximately 250,000 students. An additional 140 books will be released in November. The complaint alleged:
The Universities have directly caused millions of works that are protected by copyright to be scanned, stored in digital format, repeatedly copied and made available online for various uses. These actions not only violate the exclusive rights of copyright holders to authorize the reproduction and distribution of their works but, by creating at least two databases connected to the Internet that store millions of digital copies of copyrighted books, the Universities risk the widespread, unauthorized and irreparable dissemination of those works.
Plaintiffs seek an injunction to prevent defendants from systematically reproducing, distributing and/or displaying the plaintiffs' copyrighted books without permission.

Google's library scanning project is the focus of another federal lawsuit in New York, with a hearing scheduled for September 15. In March, the US District Court for the Southern District of New York rejected [JURIST report] the amended class action settlement agreement between Google and groups of authors and publishers who brought a copyright suit [case materials] in 2005 against the Internet giant over its book-scanning initiative [Google Book Search website]. The settlement was reached after over two years of negotiations between Google and the Authors Guild, a group seeking to preserve copyright protection for authors, and other plaintiffs including the Association of American Publishers (AAP), McGraw-Hill, Penguin Group and Simon & Schuster.




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Both sides in Libya conflict committed war crimes: AI report
Jennie Ryan on September 13, 2011 11:51 AM ET

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[JURIST] Both the government of ousted Libyan leader Muammar Gaddafi [BBC backgrounder; JURIST news archive] and the newly formed National Transitional Council (NTC) [website] have committed war crimes during the conflict in the country, Amnesty International (AI) [advocacy website] reported [text, in PDF] Tuesday. The report alleges the Gaddafi regime has:
committed serious violations of international humanitarian law (IHL), including war crimes, and gross human rights violations, which point to the commission of crimes against humanity . . . Members and supporters of the opposition, loosely structured under the leadership of the National Transitional Council (NTC), based throughout the conflict in Benghazi, have also committed human rights abuses, in some cases amounting to war crimes, albeit on a smaller scale.
The organization warned that if the NTC fails to address these allegations, violations of international law could continue to occur. Foreign nationals, specifically those from sub-Saharan Africa who are being held in detainment camps, are at particular risk of suffering from abuse according to the report. AI called on the NTC to make the investigation of those suspected of perpetrating human rights abuses a top priority. The organization warned that without an investigation "justice would not be done and a vicious cycle of abuses and reprisals risks being perpetuated. ... Libyans have had to endure great suffering for decades. They deserve to participate in the building of a new Libya where these kinds of abuses are no longer repeated."

Allegations of war crimes and human rights violations have been widespread during the conflict in Libya. On Sunday, UN Secretary-General Ban Ki-Moon [official profile] sent a letter [text, PDF] to the UN Security Council (UNSC) [official website] seeking the formation of a mission to provide assistance [JURIST report] to the new post-conflict authorities in Libya. Last month, Physicians for Human Rights (PHR) [advocacy website] reported [text, PDF] Libyan troops used children as human shields [JURIST report] to deter attacks by the North Atlantic Treaty Organization (NATO) [official website]. Also last month, Libyan Prime Minister Al Baghdad Ali Al-Mahmoudi requested that the UN create a "high-level commission" to investigate alleged human rights abuses [JURIST report] by NATO. In June, the UN Human Rights Council (UNHRC) [official website] decided to extend a mandate to an investigative panel instructing it to continue its investigation of human rights abuses in Libya, after it published a 92-page report [JURIST reports]. The report claims Libyan authorities have committed crimes against humanity such as acts constituting murder, imprisonment and other severe deprivations of physical liberties, torture, forced disappearances and rape "as part of a widespread or systematic attack against a civilian population with knowledge of the attack." The Libya conflict [JURIST backgrounder] has been ongoing since February.




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UN SG refers Sri Lanka war crimes report to rights body
Jennie Ryan on September 13, 2011 10:58 AM ET

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[JURIST] UN Secretary-General Ban Ki-Moon [official profile; JURIST news archive] on Monday sent a report [text, in PDF] to the UN Human Rights Council (HRC) [official website] accusing Sri Lankan troops of killing tens of thousands of civilians during clashes with the Liberation Tigers of Tamil Eelam (LTTE) [JURIST news archive] in 2009. The UN leader forwarded the report, compiled by a panel of experts appointed by the secretary-general, to the president of the HRC and the Office of the High Commissioner for Human Rights [official website] asking them to evaluate the claims and determine a course of action which could include an international inquiry. The panel of experts found credible allegations of serious human rights violations committed by the Sri Lankan government, including the killing of civilians through widespread shelling and the denial of humanitarian assistance. The government of Sri Lanka has opposed the findings of the panel. According to a statement released along with the report [text], "the Secretary-General had given time to the Government of Sri Lanka to respond to the report, the Government has declined to do so, and instead has produced its own reports on the situation in the north of Sri Lanka, which are being forwarded along with the panel of experts report." The panel also recommended a review of the UN's actions regarding the implementation of its humanitarian and protection mandates during the war in Sri Lanka. The secretary-general has asked Thoraya Obaid [profile], former executive director of the UN Population Fund (UNFPA) [official website], to conduct the review.

In April, a UN panel of experts on Sri Lanka [backgrounder] found credible allegations of war crimes [JURIST report] committed during the country's war with the LTTE. The special panel, appointed by the secretary-general, found that allegations of numerous war crimes and crimes against international humanitarian law asserted against both the government of Sri Lanka and the LTTE warranted further investigation. 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. The decision signaled a reversal after months of strong opposition [JURIST report] from the Sri Lankan government, who described the UN panel as an infringement of Sri Lanka's sovereignty. President Mahinda Rajapaksa [official profile] 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 2010 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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Egypt reinstates, expands emergency laws
Alexandra Malatesta on September 13, 2011 10:38 AM ET

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[JURIST] Egyptian protesters' recent attack on the Israeli Embassy has provoked the Egyptian government to reinstate emergency laws with expanded control over political demonstrations and media reporting. Emergency laws [Reuters report] will also apply to blocking roads, publishing false information and possessing weapons. Special security courts [Al Masry Al Youm report], used by former president Hosni Mubarak [Al Jazeera profile; JURIST news archive] as a tool for repressing opposition, will be reintroduced. Though the interim government recently professed its intent to end the 30-year state of emergency [JURIST report], specifically before the November parliamentary election, activists now fear that that the subsequent human rights abuses will never end. Egypt's martial law was allegedly instated for the purpose of controlling organized crime and thugs, but the government has since been accused of torture and intimidating journalists.

Protests in Egypt have continued as many believe the interim government is not progressing toward change quickly enough. In April, an Egyptian military court convicted blogger Maikel Nabil [JURIST report] and sentenced him to three years in prison for criticizing the army and raising questions over reform in the wake of revolution. He posted an article on his blog [text, in Arabic] on March 7 saying the army had beaten, 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. In March, the Supreme Council of the Armed Forces 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.




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Rights group files ICC complaint against Vatican over clergy abuse
Alexandra Malatesta on September 13, 2011 9:49 AM ET

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[JURIST] The Center for Constitutional Rights (CCR) [advocacy website] on Tuesday filed an International Criminal Court (ICC) [official website] complaint [text] against Vatican [official website] officials, including Pope Benedict XVI, for systematic sexual abuse and subsequent concealment of over 10,000 incidents. The group filed the complaint on behalf of clergy sex abuse survivors from the Survivors Network of those Abused by Priests (SNAP) [advocacy website], submitting more than 20,000 pages of materials [press release] allegedly evidencing crimes against humanity. Though abuse has been reported around the globe, the suit claims that in the US alone nearly 6,000 priests have been accused of molestation, estimating more than 100,000 US victims. Though the claims may not reach the ICC's jurisdictional standard for investigating war crimes, crimes against humanity and genocide, plaintiffs are likely to receive the international attention and awareness they are seeking [NYT report] just by filing the suit. The complaint states:
As will be shown below, high-level Vatican officials, including Cardinal Joseph Ratzinger, now Pope Benedict XVI, either knew and/or in some cases consciously disregarded information that showed subordinates were committing or about to commit such crimes. ... They bear the greatest responsibility for the system that fosters and allow sexual violence. Time and again church officials have chosen the path of secrecy and protecting their ranks over the safety and physical and mental well-being of children and vulnerable adults, families of victims and their communities. ... [T]here are documented cases showing that church officials have gone so far as to obstruct justice and/or destroyed evidence in national legal systems and have consistently engaged in the practice of "priest shifting," i.e. transferring known offenders to other locations where they continued to have access to children or vulnerable adults and who officials knew continued to commit rape and other acts of sexual violence.
If jurisdiction is granted, this could be the first time the ICC investigates crimes committed by Catholic clergy members.

In February 2010, the Vatican released church procedures [JURIST report] for handling alleged cases of sexual abuse by priests, instructing, "Civil law concerning reporting of crimes to the appropriate authorities should always be followed." The "Guide to Understanding Basic CDF Procedures concerning Sexual Abuse Allegations" summarizes the procedures governing investigations by the Congregation for the Doctrine of the Faith (CDF) [official profile] into allegations of sex abuse by clergy members. The CDF guidelines provide for interim measures meant to ensure the safety of others during civil authorities' investigations or legal proceedings. The guidelines also outline a multi-tiered system of enforcement and appeals, including local bishops, the CDF, and the Pope himself. Since 2007, in the US alone, the Church has settled more than 500 cases [JURIST news archive] of abuse for over $900 million.




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Military Court upholds sentence of al Qaeda media director
Drew Singer on September 13, 2011 8:51 AM ET

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[JURIST] The US Court of Military Commission Review [official website] on Friday ruled [text] that Ali Hamza Ahmad Suliman Al Bahlul [HRW profile; JURIST news archive], media secretary of Osama bin Laden [JURIST news archive], was properly convicted of being a propagandist and should spend the rest of this life in prison. The 7-0 vote rejects the 2009 appeal [brief, PDF] of his conviction and life sentence [JURIST reports] for conspiring with al Qaeda, soliciting murder and providing material support for terrorism. His Pentagon-appointed defense lawyers argued that his constitutional rights were violated because a supposed al Qaeda recruitment film he released is protected speech under the First Amendment.

Al Bahlul's appeal was required under the Military Commissions Act of 2006 [text, PDF], and it is unclear [Miami Herald report] whether he authorized the appeal. Al Bahlul previously boycotted much of his trial proceedings. Al Bahlul, a 39-year old Yemeni citizen, went on trial [JURIST report] at Guantanamo Bay [JURIST news archive] in 2008. He is alleged to have been Osama bin Laden's personal assistant and media secretary and was charged in February 2008 with conspiracy, solicitation to commit murder and attacks on civilians, and providing material support for terrorism. He is accused of researching the financial impact of the 9/11 attacks and also releasing the "martyr wills" of 9/11 hijackers Muhammed Atta and Ziad al Jarrah as propaganda videos. Al Bahlul was the second detainee to go on trial at Guantanamo since the prison there opened in 2002 and is the only convicted criminal currently held at the facility.




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Federal appeals court considers Oklahoma Sharia law ban
Drew Singer on September 13, 2011 7:57 AM ET

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[JURIST] The US Court of Appeals for the Tenth Circuit [official website] on Monday heard arguments over whether state courts can consider international law—and in particular, Sharia law—in their decisions. State Question 755 [text, PDF] allows state courts to look only to legal precedents of other states for guidance, provided that state does not use Islamic law. The amendment also prevents courts from "look[ing] to the legal precepts of other nations or cultures." The law condemns Muslims and their religious beliefs, argued [AP report] the attorney for Muneer Awad [WT backgrounder], executive director of the Oklahoma Council on American-Islamic Relations (CAIR) [advocacy website]. Oklahoma Solicitor General Patrick Wyrick defended the law as necessary to prevent confusion in the courts, but one judge questioned why Sharia law was singled out.

Oklahoma voters approved [JURIST report] the amendment to the state constitution [text] last November, but it has since been blocked [JURIST report] by a federal judge. The amendment, also known as the Save Our State amendment, has been called un-American by skeptics [JURIST comment]. The law was sponsored by state Representative Rex Duncan (R) [official website], who described it as a preemptive strike [Daily Mail report] against the use of Islamic law in Oklahoma. The necessity of the amendment has been questioned [CNN report], due to the fact that the use of Islamic law in US courts would likely violate the First Amendment [Cornell LII backgrounder] prohibition on laws respecting an establishment of religion in the US Constitution [text].




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South Africa court finds ANC party leader guilty of 'hate speech'
John Paul Putney on September 12, 2011 5:11 PM ET

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[JURIST] A South African court on Monday found the controversial African National Congress (ANC) [party website; NYT backgrounder] Youth League President Julius Malema [BBC profile] guilty [ruling, text] of hate speech for singing the apartheid-era protest song "Shoot the Boer." Boer is the Afrikaans word for farmer and broadly refers to whites in general and Afrikaners in particular. Malema argued earlier that the words were not to be taken literally and that the song was a celebration of fight against minority rule [NYT report], not meant to incite hatred or violence [VOA report]. Kallie Kriel, CEO of Afriforum [advocacy website], which brought the civil hate speech suit, welcomed the ruling [press release] which stretches far beyond Malema, prohibiting all South Africans from singing the song. The ruling, which comes after months of live national television coverage, opens the door for criminal prosecutions [AP report] against anyone who defies the judge's order. Crowds outside the courtroom defiantly broke out singing the now-infamous song. Malema is also facing a separate ANC disciplinary hearing which, if found guilty, could result in his expulsion from the party altogether.

The ruling is another test for legal boundary lines between prohibited hate speech and constitutionally guaranteed free speech in Africa's largest democracy. JURIST guest columnist Gregory Gordon recently called for a more accurate understanding [JURIST op-ed] of the nascent and rapidly evolving area of international speech crime law. In June, Dutch politician Geert Wilders [personal website; JURIST news archive] was acquitted of all charges [judgment text, in Dutch], the court finding his anti-Islam statements were not hate speech or discriminatory [JURIST report]. Wilders has made several "anti-Islam" comments as a political official, including: several comments similar to "I don't hate Muslims, I hate Islam"; comparing the Koran to Mein Kampf and calling for it to be banned; proposing a tax on wearing a hijab, or burqa; proposing a halt to Muslim immigration to the Netherlands. In December, the chief prosecutor of the International Criminal Court (ICC) [official website] issued summonses [JURIST report] for six Kenyan citizens [press release] believed to be responsible for post-election violence in 2007 [JURIST news archive] that resulted in more than 1,000 deaths in that country. Among those summoned was radio broadcaster Joshua Arap Sang [BBC profile] who is accused of committing crimes against humanity (persecution on political grounds) in part through broadcasting messages urging violence against certain Kenyan ethnic groups following the controversial 2007 presidential election.




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UN rights chief reports Syria death toll at 2,600
Jennie Ryan on September 12, 2011 12:11 PM ET

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[JURIST] UN High Commissioner for Human Rights Navi Pillay [official profile] on Monday said that at least 2,600 people have been killed in Syria in the crackdown on anti-government protesters in the country. During her address to the UN Human Rights Council (UNHRC) [official website], Pillay said "that, according to reliable sources on the ground, the number of those killed since the onset of the unrest in mid-March 2011 in [Syria], has now reached at least 2,600." This figure represents a marked increase in the number of casualties as calculated by the UN. In August, Pillay told the HRC that the death toll stood at 2,200 [press release]. Bouthaina Shaaban, political and media adviser to Syrian President Bashar al-Assad [BBC backgrounder; JURIST news archive], refuted the number [Reuters report], saying a total of 1,400 had been killed since mid-March. Shaaban said the numbers were split evenly, with 700 opposition protesters and 700 government forces killed as a result of the unrest. She also stated that Syria could produce a list of the names of the victims.

Last month, Pillay called on the UN Security Council to refer Syria to the International Criminal Court (ICC) [official websites] to investigate the violent suppression of anti-government protests [JURIST report]. Pillay's remarks came after the Fact-finding Mission in Syria published its 22-page report concluding that Syrian government forces cracking down on the opposition may be committing crimes against humanity [JURIST report]. The Fact-finding Mission was established [JURIST report] by the HRC in April but was not permitted to enter the country. Also last month, the Los Angeles Times reported that an unknown Western country is funding an investigation [JURIST report] into Syria's recent human rights abuses. In July, two UN rights officials expressed concern over reports of violence [JURIST report] used by Syrian authorities against the country's own people.

1:30 PM ET ~ The UNHRC has named a three-person panel of international experts to investigate allegations of human rights violations including possible crimes against humanity in Syria.




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Ukraine ex-PM Tymoshenko trial delayed
Jennie Ryan on September 12, 2011 11:08 AM ET

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[JURIST] The Pechersk District Court announced on Monday that the trial of former prime minister Yulia Tymoshenko [personal website, in Ukrainian; JURIST news archive] on charges of abuse of office would be adjourned for two weeks [press release, in Ukrainian]. Judge Rodion Kireyev said he would delay further proceedings "in order to ensure the defendant's right to defense, the court is giving additional time to prepare for debates." The decision to postpone comes after criticism from the US and EU regarding Tymoshenko's prosecution on charges stemming from an allegation by the administration of President Viktor Yanukovych [official website; JURIST news archive] that the former prime minister signed an economically unfavorable natural gas deal with Russia while she was in office. A spokesman for EU Foreign Affairs Chief Catherine Ashton [official profile] confirmed that Ashton and US Secretary of State Hillary Clinton [official profile] wrote a letter to Yanukovych [Reuters report] on Friday regarding the case, but declined to elaborate on the contents of the communication. The trial is set to resume on September 27.

Last month, former Ukrainian president Viktor Yushchenko [BBC backgrounder; JURIST news archive] testified against [JURIST report] Tymoshenko, his former prime minister. That same month, the Kiev Appeals Court refused Tymoshenko's appeal of her detention for contempt charges [JURIST reports]. Also in August, Kireyev rejected a request [JURIST report] from Tymoshenko to release her from prison. In July, the Security Service of Ukraine (SBU) [official website, in Ukrainian] announced that they are launching a criminal investigation [JURIST report] into United Energy Systems of Ukraine (UESU), an energy company at one time headed by Tymoshenko. In June, Tymoshenko filed a complaint [JURIST report] with the European Court of Human Rights alleging violations of the European Convention of Human Rights [text, PDF]. The complaint argued that the charges against Tymoshenko are politically engineered by Yanukovych. Last May, prosecutors reopened a separate criminal investigation [JURIST report] into allegations that Tymoshenko attempted to bribe Supreme Court judges. Tymoshenko's government was dissolved in March 2010 after she narrowly lost the presidential election to Yanukovych. Tymoshenko had alleged that widespread voter fraud allowed Yanukovych to win the election.




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Afghanistan police committing serious abuses: HRW
Maureen Cosgrove on September 12, 2011 10:14 AM ET

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[JURIST] The Afghan Local Police (ALP) force is committing serious abuses [press release], and the Afghan government is doing little to hold the officials accountable, Human Rights Watch (HRW) [advocacy website] announced Monday. In a report [text, PDF] entitled "Just Don't Call It a Militia: Impunity, Militias, and the Afghan Local Police," HRW alleges that the national army and police have been committing serious human rights violations such as killings, rape, arbitrary detention, abductions, forcible land seizures and illegal raids. These abuses have taken place across the country but are on the rise in places that have been secure historically, like the northeastern Kunduz province. Creation of local militias has increased in recent years in an effort to combat insurgency and address the country's deteriorating security. These local militias, according to HRW, lack proper oversight and are often "hijacked" by local leaders who purport to use the militias for personal gain. Despite improvements and efforts to increase supervision of the army and police forces, HRW says the state-run institutions have proven ineffective. HRW recommended that the Afghan government "sever all ties with irregular armed groups and abusive commanders, and take immediate steps to create well-trained, properly vetted security forces that operate within the rule of law and are held accountable for their actions." HRW also called on the US and international community to assist the Afghan government in creating guidelines and establishing enforcement mechanisms to eliminate the abuses.

Afghanistan has received much criticism for its human rights record. Corruption, abuse of power and a focus on short-term security goals in Afghanistan have intensified the issue of poverty [JURIST report], affecting more than two-thirds of the population, according to a March 2010 report [text, DOC] from the UN's Office of the High Commissioner for Human Rights (OHCHR) [official website]. Earlier that same month, UN High Commissioner for Human Rights Navi Pillay [official profile] delivered a report [JURIST report] to the UN Human Rights Council (UNHRC) [official website] that said Afghanistan's human rights progress has been thwarted by armed conflict, censorship, abuse of power and violence against women. In February 2009, the US State Department (DOS) [official website] released its annual 2008 Country Reports on Human Rights Practices [DOS materials], criticizing Afghanistan [JURIST report] for its continued use of child labor. In November 2008, Pillay urged [press release] Afghan President Hamid Karzai to put a stop to executions [JURIST report] and join nations calling for a death penalty moratorium after five prisoners were executed over the course of four days.




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Italy seeks damages for Nazi crimes at UN tribunal
Maureen Cosgrove on September 12, 2011 9:28 AM ET

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[JURIST] The International Court of Justice (ICJ) [official website] at The Hague on Monday began hearing arguments from Germany and Italy, which is seeking damages from Germany for crimes committed by Nazis during World War II. In November 2008, Germany filed a lawsuit [ICJ press release, PDF] against Italy in the ICJ in a bid to block new claims [JURIST report] for personal damages resulting from Nazi actions in World War II. Germany is arguing that an October 2008 decision [JURIST report] by Italy's Court of Cassation [official website, in Italian] which ordered Germany to pay 1 million euros (USD $1.3 million) in damages to relatives of civilians killed in the town of Civitella during the war, violated the principle of state immunity [DW report]. The lawyers representing Germany argued before the court that international law would be "atomized" and "politicized" [AP report] if the ICJ were to accept the Italian court's decision. Germany further argues that it has already compensated Italy for Nazi-related damages pursuant to a 1961 treaty. The ICJ is not expected to hand down its decision for several months.

In October 2008 the Court of Cassation awarded the damages [Corriere della Sera report, in Italian] in a case against Max Josef Milde, a German sergeant present at the Civitella attack, who was sentenced in absentia to life in prison. Under Italian law, crime victims may seek civil damages as part of a criminal proceeding. Germany had argued that the 1961 Bonn Treaty, where Germany agreed to pay 40 million marks to Italy for war crimes committed, closed all further financial compensation claims [JURIST report], but the Italian court held the treaty only applied to treatment of the Jews. International agreements that govern situations in which a nation may claim immunity include the European Convention on State Immunity [text], ratified by members of the Council of Europe in 1972, and the UN Convention on Jurisdictional Immunities of States and their Property [text, PDF], adopted in 2004. JURIST Guest Columnist Laurie Blank [academic profile] discusses the implications of sovereign immunity [JURIST op-ed] in cases like Germany v. Italy that involve war crimes and other atrocities.




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Uganda chief justice says judiciary not free
Maureen Cosgrove on September 11, 2011 1:32 PM ET

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[JURIST] Ugandan Supreme Court Chief Justice Benjamin Odoki on Friday said the Judiciary [official website] lacks independence as a result of interference by African governments. At the Southern African Chief Justices Forum in Kampala, Odoki pointed to surveys [Daily Monitor report] by the World Bank and the World Economic Forum [official websites] that rank African countries below other countries with respect to judicial independence. Odoki claims the government's refusal to enforce court decisions and recent attacks on the courts are further indicators of the government's intrusion. Odoki also suggested that inadequate allocation of resources to the judiciary undermine the judiciary's power in relation to the other branches of government. The Chief Justice ultimately called on African governments to make the Judiciary a priority in budget matters.

Judicial independence has been a long-standing issue in Uganda. In March 2007, Ugandan judges initiated a week-long general strike [JURIST report] to protest the siege of the High Court and seizure of defendants by government forces. The judicial strike came in response to a siege of the Ugandan High Court where security agents surrounded the building and arrested six supporters of opposition leader Kizza Besiyge [BBC profile; JURIST news archive] who had been charged with treason but released on bail. The agents beat the suspects and pistol-whipped their lawyer unconscious with a rifle butt, according to witnesses. Ugandan President Yoweri Museveni [BBC profile] criticized the Constitutional Court ruling [JURIST reports] that halted the court-martial of Besigye on charges of possessing illegal firearms. Museveni vowed to fight the court ruling politically, even suggesting that a referendum may be used. The International Commission of Jurists [advocacy website] has since criticized [press release] the government for interfering with judicial independence by intimidating lawyers and judges with armed agents.




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Iraq PM accepts resignation of lead corruption watchdog
Maureen Cosgrove on September 11, 2011 12:27 PM ET

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[JURIST] Iraqi Prime Minister Nouri al-Maliki [official website, in Arabic; JURIST news archive] on Saturday accepted the resignation [press release, in Arabic] of the country's lead corruption watchdog, Raheem Uqaili. Uqaili was the chairman of Iraq's Integrity Commission [official website, in Arabic], an independent corruption monitoring agency that investigates officials from the Defense Ministry and other government agencies. Uqaili supporters say political conflict prevented him from taking on key cases [LA Times report], while critics claim Uqaili was ineffective.

Radhi Hamza al-Radhi, the former chief of the Integrity Commission, has accused the Iraqi government of protecting corrupt employees and attempting to influence the commission [JURIST report]. He resigned from the commission in September 2007 while on official business in the United States, citing the increase in death threats against him and his family, though there have also been corruption allegations against al-Radhi [JURIST report]. In 2007, Maliki ordered that his approval must be obtained [JURIST report] before any government minister or official from the president's office be charged with corruption, according to the chair of the US House Committee on Oversight and Government Reform [official website]. Despite Maliki's plans to fight corruption [JURIST report] announced in May 2006, Iraq ranked as one of the world's most corrupt nations [JURIST report] according to the 2009 Corruption Perceptions Index (CPI) [text; press release] prepared by Transparency International (TI) [advocacy website].




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Federal appeals court to conduct rehearing on Michigan affirmative action ban
Erin Bock on September 11, 2011 10:54 AM ET

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[JURIST] The US Court of Appeals for the Sixth Circuit [official website] has agreed to a rehearing en banc [order, PDF] to determine the constitutionality of an amendment to the Michigan Constitution [text, PDF] banning affirmative action. Proposal 2 [text; JURIST news archive] bans affirmative action in public employment, public education and state contracting. The decision vacates a ruling handed down by a three-judge panel of the Sixth Circuit in July finding the proposal unconstitutional [JURIST report]. The panel ruled that the proposal unduly burdened minorities by abusing a political process where minorities were likely to have no redress. Michigan Attorney General Bill Schuette [official website] made a formal request for a rehearing [JURIST report] in July stating that the decision conflicted with prior decisions of the court.

The Sixth Circuit's ruling reversed a 2008 decision by the US District Court for the Eastern District of Michigan [official website] to dismiss the challenge [JURIST report] with prejudice. District Court Judge David Lawson had found that Proposal 2 was "facially neutral" regarding racial discrimination and did not violate the US Constitution. Michigan voters approved [JURIST report] the constitutional amendment in November 2006, and it was initially expected to take effect in late December 2006. In December 2006, a federal judge ruled that the universities could delay implementing the proposal [JURIST report] until the they had completed the 2006-2007 admission cycle under current procedures, but that order was later stayed [opinion, PDF] by the Sixth Circuit. The US Supreme Court [official website] declined [JURIST report] to consider whether the University of Michigan, Michigan State University and Wayne State University could delay implementing Proposal 2 in early 2007.




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UN Secretary-General calls for creation of Libya mission
Erin Bock on September 11, 2011 10:28 AM ET

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[JURIST] UN Secretary-General Ban Ki-Moon [official profile] sent a letter [text, PDF] to the UN Security Council (UNSC) [official website] , which was circulated on Friday, seeking the formation of a mission to provide assistance to the new post-conflict authorities in Libya. Ban proposed the establishment of a three-month United Nations Support Mission in Libya, which would focus on "further defining the needs and wishes of Libya for United Nations support, while delivering urgent advice and assistance." Specifically, the mission would include assistance and support to national efforts regarding the restoration of public security, promotion of national reconciliation and political dialogue, restoration of public services, protection of human rights, economic recovery and coordination of support from other actors. Ban emphasized the importance of reconciliation and recovery in Libya as well as the importance of UN support stating:
In the past few weeks, we have witnessed dramatic and historic events in Libya. There can no longer be any doubt regarding the yearning of so many Libyans for fundamental change, human dignity and freedom. [The new Libyan authorities] have clearly requested the assistance of the United Nations and the international community in this process. The time has come for Libyans to begin walking the path of reconciliation and recovery. It is important that the international community be ready to support the Libyan people.
The UNSC announced [press release] on Friday that it has begun discussion regarding Ban's proposal. Ban's Special Adviser for Post-Conflict Planning in Libya, Ian Martin, visited the country for five days last week and reported to the UNSC that the country would benefit from Ban's proposal. Martin indicated in a subsequent press conference that the UNSC was supportive of the proposed mission [AP report] and would circulate a draft resolution on Monday.

The Libya conflict [JURIST backgrounder] has been ongoing since February. On Thursday, Chief Prosecutor for the International Criminal Court (ICC) [official website], Luis Moreno-Ocampo [official profile], announced that he is seeking assistance [JURIST report] from INTERPOL [official website] in order to locate and arrest former Libyan leader Muammar Gaddafi [BBC profile; JURIST news archive]. The ICC previously issued arrest warrants [JURIST report] for Gaddafi, his son and his brother-in law. Gaddafi's son, Saif al-Islam was allegedly captured [JURIST report] last month, though he reported to foreign media that he will continue fighting. Last month, Libyan Prime Minister Al Baghdad Ali Al-Mahmoudi requested that the UN create a "high-level commission" to investigate alleged human rights abuses [JURIST report] by the North Atlantic Treaty Organization (NATO) [official website]. In June, the UN Human Rights Council (UNHRC) [official website] decided to extend a mandate to an investigative panel instructing it to continue its investigation of human rights abuses in Libya, after it published a 92-page report [JURIST reports]. The report claims Libyan authorities have committed crimes against humanity such as acts constituting murder, imprisonment and other severe deprivations of physical liberties, torture, forced disappearances and rape "as part of a widespread or systematic attack against a civilian population with knowledge of the attack."




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Senate approves legislation reforming US patent system
Ashley Hileman on September 10, 2011 1:07 PM ET

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[JURIST] The US Senate [official website] Thursday voted 89-9 to approve legislation [roll call vote] to amend the US patent system for the first time since 1952. The America Invents Act [HR 1249 materials], sponsored by Congressman Lamar Smith (R) [official website], proposes significant changes to the current US patent system. One of these would result in the conversion from a system of "first to invent" to a system of "first to file", a change which Congress supports because of its belief that it will "promote the progress of science" as well as promote the "harmonization" of the US patent system with those used in nearly all other countries. Additionally, the Act would alter the way funds are allocated to the Patent Office and the way patents that are granted, but later contested, are handled in an attempt to cut down on costly legal disputes. The US House of Representatives [official website] approved the bill [JURIST report] in June. The bill will proceed to President Barack Obama, who has indicated that he will sign it into law [CNN report].

There have been several significant legal decisions in patent law in the last few months. In June, the US Supreme Court [official website; JURIST news archive] unanimously ruled against Microsoft [corporate website], holding that a patent will be invalidated only if the challenging party meets the "clear and convincing evidence" standard [JURIST report]. The court also held in a separate decision [JURIST report] that the Bayh-Doyle Act [35 USC §§ 200-212], which vests patent rights to universities for inventions from federally funded research, did not give Stanford University [academic website] superior rights to the invention of its employee and thus, the employee could transfer his invention rights to a third party. In May, the Supreme Court ruled that induced patent infringement requires knowledge [JURIST report] that the induced acts constitute patent infringement. Also in May, the US Court of Appeals for the Federal Circuit [official website] restricted the use of the "inequitable conduct" defense [JURIST report] for invalidating patents.




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AT&T files response to DOJ antitrust lawsuit
Ashley Hileman on September 10, 2011 11:54 AM ET

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[JURIST] Telecom giant AT&T [corporate website] filed a response Friday in the US District Court for the District of Columbia [official website] to the antitrust lawsuit initiated against it by the US Department of Justice (DOJ) [official website]. The DOJ filed suit [JURIST report] last month attempting to block AT&T's proposed $39 billion acquisition of cellular carrier T-Mobile USA [corporate website], citing the important role T-Mobile has played in keeping prices down by creating pressure on the other large carriers, including not only AT&T, but also Verizon Wireless and Sprint Nextel [corporate websites]. In its response to the suit, AT&T argued that acquiring T-Mobile will allow it to provide better services to its customers [AP report] as a result of the expansion of its mobile network. In addition, AT&T contends that smaller, regional carriers will act as alternatives to consumers and thus not allow the market to be completely dominated by itself, Verizon and Sprint. The case is set to be heard on September 21.

The worldwide consolidation of media is an ongoing global concern. In August, a class action lawsuit was filed [JURIST report] against Apple [corporate website] and five major publishers for allegedly colluding to illegally fix electronic book (e-book) prices. Communication Director for Free Press, Dave Saldana argued last July [JURIST Op-ed] that the proposed AT&T/T-Mobile deal is an example of the enormous influence giant media corporations can bring to bear through massive public relations blitzes and the acquisition of political influence through the pouring of money into lobbying efforts and campaign contributions. He said that it is as a result of exactly these kinds of efforts, that AT&T remains confident that its T-Mobile purchase will go through, "because it knows it has several hundred million reasons to push for the merger, and millions of means to get it." He warned that media consolidation is dangerous because it gives the companies leverage to sway public opinion and dominate the narrative when their own practices are questioned.




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House passes intelligence appropriations bill for 2012
Ashley Hileman on September 10, 2011 10:47 AM ET

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[JURIST] The US House of Representatives [official website] Friday voted 384-14 to pass a bill [roll call vote] authorizing appropriations for intelligence activities for the next year after removing two provisions under a veto threat from the Obama Administration. The Intelligence Authorization Act for Fiscal Year 2012 [HR 1892 materials] passed the House with overwhelming bipartisan support [Washington Post report] after after receiving a memo from the White House objecting to two provisions, including one that would have made the administration give State Department cables related to the transfer of detainees and other potentially sensitive information to the committees. The White House also objected to a provision requiring the Senate to confirm the director of the National Security Agency [official website], citing concerns that the position may remain unfilled for longer than necessary as a result of the difficulty involved in obtaining such a confirmation. The bill would also require a report on the operation that killed Osama bin Laden. It must still be approved by the Senate before being sent to the President. However, leaders of the House and Senate have already met to work out differences between their respective bills.

US intelligence-related activities have been controversial. Last month, a judge for the US District Court for the District of Columbia [official website] ruled that former defense secretary Donald Rumsfeld [JURIST news archive] can be sued [JURIST report] by a former US military contractor who claims he was tortured while imprisoned in Iraq. The man, whose identity remains concealed and who worked in Iraq as an intelligence officer, said the US military accused him of passing information to the enemy and abducted and tortured him without formally charging him with a crime under orders from Rumsfeld. Upon release and return to the US, the former intelligence officer filed a suit demanding compensation for property lost and rights violated. This is the second time Rumsfeld, currently represented by the Justice Department, has been allowed to be sued personally in a torture case. The other suit, which Rumsfeld is now appealing, was allowed last year [JURIST report].




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UN rights office concerned over renewed violence in Nigeria
Michael Haggerson on September 9, 2011 3:24 PM ET

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[JURIST] The UN Office of the High Commissioner for Human Rights [official website] expressed concern Friday over increased ethnic violence [press release] in Nigeria's "Middle Belt" region [Nigerian Newsday backgrounder] between Christians and Muslims. The report states that up to 70 people have been killed since August, and, in order to stop cycles of violence, local authorities must work to address the underlying issues. The report also describes the recent actions of Boko Haram [CFR backgrounder] in bombing a UN building in Nigeria [VO report] last month as "cowardly." At least 18 people died in the attack. Spokesperson Rupert Colville said:
We encourage the authorities at national and local levels to take effective preventative measures against such violence, including by curbing hate-speech and working with civil society, including human rights NGOs, religious leaders and academic institutions, to attempt reconciliation between the various communities. It is of utmost importance that justice is done and is seen to be done by prosecuting the alleged perpetrators of violence and ensuring remedies for victims and their families.
Colville also stressed that "security forces must ... act in full compliance with the law."

Corruption in the Nigerian government has further inflamed ethnic rivalries. In August Human Rights Watch [advocacy website] reported that corruption in the Nigerian government has become endemic [JURIST report]. The group criticized President Goodluck Jonathan [BBC profile] and Nigeria's anti-corruption agency. Earlier that month a Nigerian official called for the creation of a special anti-corruption court [JURIST report] because corruption cases in the regular courts were taking too long to process. Nigeria's outgoing speaker of the House of Representatives was arrested in June [JURIST report] on allegations of fraud. In April the Chief Prosecutor of the International Criminal Court [official website] announced an investigation [JURIST report] into ethnic violence that broke out following the most recent national election. After Jonathan, from the predominantly Christian south, defeated the challenger Muhammadu Buhari [BBC profile], from the predominantly Muslim north, riots ensued, resulting in the death of over 100 people and the displacement of more than 40,000.




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Mississippi high court upholds election initiative to redefine personhood
Maureen Cosgrove on September 9, 2011 10:47 AM ET

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[JURIST] The Supreme Court of Mississippi [official website] on Thursday ruled [opinion, PDF] that an initiative seeking to redefine personhood can be placed on the November 2011 general election ballot. The initiative, Measure 26 [materials], would amend the Mississippi Constitution to define the word "person" or "persons" to include "every human being from the moment of fertilization, cloning, or the functional equivalent thereof." Two Mississippi citizens filed the lawsuit after it was qualified, claiming the initiative violated Article 15, Section 273(5)(a) [text, PDF] of the Mississippi Constitution. The court refused to rule on the constitutionality of the initiative itself, but concluded that it could not interfere with or question the validity of a legislative proposal prior to the election. The court, therefore, ultimately dismissed the challenge on the basis that Measure 26 is not ripe for review. The Executive Director of the American Civil Liberties Union of Mississippi (ACLU) [advocacy website] Nsombi Lambright expressed her discontent with the ruling and called on voters to reject the measure:
We're disappointed with the ruling. A measure will be on the ballot that will allow the government to dictate what is a private matter that's best decided by a woman, her family and within the context of her faith. Mississippi voters should reject this intrusive and dangerous measure.
Personhood USA [official website] praised the ruling [press release], saying "Mississippians volunteered thousands of hours of their time to ensure that voters would have the right to vote on this prolife amendment."

Colorado voters struck down [Denver Post report] a similar ballot initiative [text, PDF] in November 2010 that would have amended the state's constitution [text] to extend rights to fetuses [JURIST report] and would have effectively outlawed abortion [JURIST news archive]. In November 2007, the Colorado Supreme Court [official website] approved the language of an anti-abortion group's proposed ballot initiative that would amend the Colorado constitution [JURIST report] to define a fertilized egg as a "person" entitled to "inalienable rights, equality of justice, and due process of law" under the state constitution. JURIST Guest Columnist Caitlin Borgmann argues that redefining personhood is just one of several approaches aimed at curtailing abortion [JURIST op-ed].




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Fourth Circuit rejects Virginia health care law challenge
Sarah Posner on September 9, 2011 10:25 AM ET

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[JURIST] The US Court of Appeals for the Fourth Circuit [official website] on Thursday dismissed two lawsuits challenging the constitutionality of the new Patient Protection and Affordable Care Act (PPACA) [HR 3590 text; JURIST backgrounder]. In Virginia v. Sebelius [opinion, PDF], the court held that Virginia lacked standing to sue and vacated the judgment of the district court [JURIST report], remanding the case with instructions to dismiss the suit for lack of subject-matter jurisdiction. Circuit Judge Diana Gribbon Motz wrote:
[T]he lack of factual context here impedes analysis of the underlying constitutional disputes. For example, both parties premise their Commerce Clause arguments on their competing characterizations of what the individual mandate regulates. A number of factors might affect the validity of these characterizations, including a taxpayer's current possession of health insurance, current or planned future consumption of health care, or other related voluntary action. The case at hand lacks the concrete factual context critical to a proper analysis of these issues.
In Liberty University v. Geithner [opinion, PDF], the court ruled that the suit was filed prematurely, also vacating the lower court ruling [JURIST report], which had declared the act constitutional.

Although the Fourth Circuit dismissed the case without deciding the constitutionality of PPACA, the US Supreme Court [official website] may eventually rule on the issue. Last month, the US Court of Appeals for the Eleventh Circuit [official website] struck down the individual mandate [JURIST report] as unconstitutional, creating a circuit split. The US Court of Appeals for the Sixth Circuit [official website] had upheld the law in June, and that ruling was appealed [JURIST reports] to the Supreme Court by the Thomas More Law Center (TMLC) [advocacy website]. Also last month, the US Court of Appeals for the Third Circuit [official website] dismissed a lawsuit [JURIST report] brought by a physician organization for lack of standing.




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ECJ rules France ban on genetically modified maize illegal
Sarah Posner on September 9, 2011 9:57 AM ET

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[JURIST] The European Court of Justice (ECJ) [official website] ruled [case materials; press release, PDF] Thursday that France's ban on the cultivation of a genetically modified (GM) maize was illegal. Although France has the right to impose a ban on GM maize, the court stated that France acted illegally by not following proper EU protocol [Reuters report]. In order to impose a ban, EU members must demonstrate that the product poses a serious risk to the environment or human or animal health, and notify the European Commission [official website] authorities of the need to take emergency measures. The GM maize was developed by US biotech giant Monsanto [corporate website] in 2008. The use of GM organisms, whether through experimentation or cultivation, is governed by EU law. France issued two orders prohibiting the planting of MON 810 maize seed, which is primarily used to make animal feed resistant to certain parasites. France first banned the product by way of emergency measures in 2007.

In March, ECJ Advocate General Paolo Mengozzi issued an opinion [JURIST report] stating that a French ban on cultivating genetically modified (GM) crops is illegal. France sought to prohibit production of MON 810 within its borders by citing a safeguard clause adopted by the EU in 2004. The clause is designed to allow EU member states to restrict previously approved products in the event that new evidence emerges indicating that the product in question is harmful to either humans or the environment. MON 810 was approved for use by the EU in 1998, and Mengozzi disagreed with applying the clause on the grounds that France imposed its ban without proper European Commission consultation. Though such opinions are not binding, courts typically adopt the stance set forth by advocates general, as the court did here.




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UK lifts ban on blood donations from gay men
Maureen Cosgrove on September 9, 2011 9:49 AM ET

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[JURIST] The UK Department of Health (DH) [official website] announced Thursday that it will lift the lifetime ban on blood donations [press release] from men who have had sex with other men. Britain introduced the lifetime ban in the 1980s in an effort to quell the proliferation of HIV and AIDS [AFP report]. Men who have not had sex with another man in over 12 months will be eligible to donate, though men who have had anal or oral sex with another man in the 12 months prior to donating will not be able to donate, regardless of whether they used a condom. Deirdre Kelly, a member of the Advisory Committee on the Safety of Blood, Tissues and Organs (SaBTO) [official website] review panel, said the repeal would not affect public safety:
Around two million individuals generously donate blood every year in the UK to save patients' lives. The SaBTO review examined the best available scientific evidence for UK blood donor selection in relation to sexual behaviours. Our recommendation takes account of new data that have become available since the last review in 2006, as well as scientific and technological advances in the testing of blood. Adherence to the donor selection criteria is vital to maintain the safety of the blood supply, and donors need to be assured that the criteria are evidence-based. We are confident that this change maintains the safety of the blood supply.
The NHS Blood and Transplant (NHSBT) [official website] in England and North Wales and the Blood Services of Scotland and Wales will implement the changes on November 7.

Bans on blood donations from homosexual individuals garner much debate. The US Department of Health and Human Services (DHHS) [official website] in July asked experts to review a similar US policy [ABC report] that bars gay men from donating blood. An Ontario Superior Court [official website] judge ruled [judgment, PDF] in September 2010 that the Canadian Blood Services (CBS) is justified in prohibiting sexually active gay males from donating blood [JURIST report] on the grounds that the CBS discriminates on the basis of health and safety considerations rather than on sexual orientation. In March 2009, a Tasmanian court upheld [JURIST report] an Australian Red Cross [organization website] policy [text] to refuse blood donations from sexually active homosexual males. Petitioner Michael Cain tried to donate blood in 2004, but his offer was refused after he affirmatively answered an inquiry into whether he "had male-to-male sex" in the past 12 months. The tribunal held that Cain's complaint was unsubstantiated and that the conduct of the Red Cross did not amount to direct or indirect discrimination under the Anti-Discrimination Act of 1998 [text].




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Ohio death penalty procedure to be reviewed
Hillary Stemple on September 9, 2011 9:47 AM ET

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[JURIST] The Chief Justice of the Ohio Supreme Court, Maureen O'Connor [official profile], on Thursday announced the formation of a joint task force between the Supreme Court of Ohio and the Ohio State Bar Association [official websites] that will review the procedures [text] surrounding Ohio's death penalty [JURIST news archive] law. O'Connor indicated that the task force was being created not to judge or discuss whether the state should have the death penalty, but rather to ensure that the law is "administered in the most fair, efficient, and judicious manner possible." The task force will be chaired by Retired Judge James Brogan of the Ohio Second District Court of Appeals and will include judges, prosecuting attorneys, criminal defense counsel, legislators and academics. O'Connor indicated that the diverse backgrounds of the participants will "ensure that the criteria, laws, and procedures regarding the imposition of the death penalty in Ohio are fair, impartial, and balanced." The task force will be reviewing death penalty laws and procedures from other jurisdictions and analyzing the data and costs associated with those laws. They will also review information included in the American Bar Association's Death Penalty Moratorium Implementation Project [materials] in order to "identify areas in need of action and recommend the course of action."

In December 2010, the Ohio Supreme Court rejected a challenge [JURIST report] to the lethal injection method of execution and indicated that they would not hear further cases regarding lethal injection until the Ohio General Assembly [official website] explicitly expanded state review of death penalty cases. In November 2009, Ohio adopted a single-drug lethal injection protocol [JURIST report], replacing the previously used three-drug method. The single-drug lethal injection method has faced numerous challenges, with one case reaching the US Supreme Court [official website]. In March 2010, the Supreme Court refused [JURIST report] to stay the execution of an Ohio inmate challenging the state's single-drug execution protocol. Ohio conducted its first execution [JURIST report] using the new procedure in December 2009. The change in procedure came after the state undertook a review [JURIST report] of its lethal injection practices in September 2009, following the planned execution of inmate Romell Broom failed when a suitable vein for the drugs' administration could not be found.




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ACLU challenges North Carolina pro-life license plates
Hillary Stemple on September 9, 2011 8:54 AM ET

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[JURIST] The American Civil Liberties Union of North Carolina Legal Foundation (ACLU-NCLF) [advocacy website] on Thursday filed a lawsuit [complaint, PDF] in the federal district court for the Eastern District of North Carolina challenging a North Carolina state law authorizing the use of pro-life license plates as a violation of the First Amendment [text]. In June, the North Carolina General Assembly [official website] passed a bill [HB 289 materials] authorizing the issuance of "Choose Life" license plates, but failed to authorize the use of license plates stating, "Trust Women. Respect Choice," or "Respect Choice," which would indicate advocacy of reproductive rights. The ACLU-NCLF alleges that allowing pro-life proponents to express their views through the use of license plates while denying the same right to pro-choice proponents is discriminatory and in violation of the First Amendment. Katherine Lewis Parker, the Legal Director of the ACLU-NCLF, indicated that the law is being challenged because of its inhibitions on freedom of speech [statement] and not because of the abortion position advocated by the license plates, stating:
This is a basic issue of freedom of speech and fairness. It is a fundamental tenet of the First Amendment that the State cannot use its authority to promote one side of a debate while denying the same opportunity to the other side. Anyone who supports freedom of speech should agree with this stance, regardless of one's position on abortion. Our position would be the same if the State had authorized a pro-choice license plate but not an anti-choice alternative. In that situation, the ACLU-NCLF would be suing on behalf of anti-choice drivers under the exact same theory of viewpoint discrimination.
The complaint asks the court declare the current law unconstitutional and to order the state to stop issuing the pro-life license plates without authorizing and issuing a pro-choice plate.

In addition to the pro-life license plate law, the North Carolina General Assembly also passed legislation [HB 854 materials] in June that would require a 24-hour waiting period before receiving an abortion [JURIST news archive]. The "Woman's Right to Know Act" also requires women seeking an abortion to view an ultrasound of the fetus prior to the procedure. North Carolina Governor Beverly Perdue [official website] vetoed [JURIST report] the legislation calling it "a dangerous intrusion into the confidential relationship that exists between women and their doctors." In July, however, both the House and Senate [JURIST reports] voted to override the veto, allowing the legislation to become North Carolina law. Opponents of the law have called it "draconian" and have stated that women seeking abortions will face dramatic changes once the law takes effect, while supporters contend that the new law will give women the opportunity to "know all the facts" about abortion.




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ICC requests help from INTERPOL to locate Gaddafi
Michael Haggerson on September 8, 2011 3:29 PM ET

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[JURIST] Chief Prosecutor for the International Criminal Court (ICC) [official website], Luis Moreno-Ocampo [official profile], announced on Thursday that he is seeking assistance [press release] from INTERPOL [official website] to locate and arrest former Libyan leader Muammar Gaddafi [BBC profile; JURIST news archive]. The ICC issued arrest warrants [JURIST report] for Gaddafi, his son Saif al-Islam Gaddafi and his brother-in-law Abdullah al-Sanussi for alleged crimes against humanity. Saif al-Islam Gaddafi was allegedly captured [JURIST report] last month but a free Saif al-Islam vowed to continue fighting [The Telegraph report] to foreign media. The whereabouts of Gaddafi and Abdullah al-Sanussi are currently unknown.

The Libya conflict [JURIST backgrounder] has been ongoing since February. Last month, Libyan Prime Minister Al Baghdad Ali Al-Mahmoudi requested that the UN create a "high-level commission" to investigate alleged human rights abuses [JURIST report] by the North Atlantic Treaty Organization (NATO) [official website]. Though NATO was mandated by the UN to use force in order to stop Muammar from fomenting violence upon Libyan citizens, the campaign has allegedly gone beyond the scope of protecting civilians and recently led to the death of 85 civilians in one night after NATO forces bombed a residential area supposedly housing a rebel command center. In June, the UN Human Rights Council (UNHRC) [official website] decided to extend a mandate to an investigative panel instructing it to continue its investigation of human rights abuses in Libya, after it published a 92-page report [JURIST reports]. The report claims Libyan authorities have committed crimes against humanity such as acts constituting murder, imprisonment and other severe deprivations of physical liberties, torture, forced disappearances and rape "as part of a widespread or systematic attack against a civilian population with knowledge of the attack."




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DOJ condemns unconstitutional conduct of Puerto Rico police
Andrea Bottorff on September 8, 2011 3:03 PM ET

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[JURIST] The US Department of Justice (DOJ) [official website] on Thursday announced its findings from a three-year investigation that the Puerto Rico Police Department (PRPD) [official website, in Spanish] has engaged in repeated unlawful and unconstitutional behavior [report materials]. The investigation, which began in June 2008, uncovered the PRPD use of excessive and unreasonable force, failure to protect First Amendment rights and unconstitutional stops, searches and arrests. In its executive summary report [PDF], the DOJ acknowledged that the rights violations corresponded with a period of increased crime and pressure on the PRPD. However, such circumstances did not excuse the misconduct:
[I]ncreasing crime cannot be used to justify continued civil rights violations or the failure to implement meaningful reforms. Constitutional policing and effective law enforcement are inextricably bound. Public safety depends on the trust and cooperation of the community, which in turn depends on constitutional police practices that respect civil rights. Our previous efforts in working with large police departments strongly suggest that by addressing the civil rights concerns we raise in this report, the Commonwealth will not only meet its constitutional duty, but also reduce crime, improve public safety, and increase community confidence.
The DOJ also identified the PRPD's failure to report or investigate allegations of sex crimes and domestic violence, as well as police discrimination against Dominican individuals. The DOJ aims to work with the PRPD and the Commonwealth of Puerto Rico [official website] to eliminate unlawful police behavior and create more transparency and accountability for law enforcement.

The American Civil Liberties Union (ACLU) [advocacy website] in March urged [JURIST report] the DOJ to take action against the government of Puerto Rico for alleged civil rights violations. In a letter addressed to Assistant Attorney General Thomas Perez, the ACLU asked the DOJ to conclude its investigation into rights abuses reported [text, PDF] by the ACLU of Puerto Rico [advocacy website] since 2008 and publish a report of its findings. It also urged the DOJ to intervene to provide remedies to end the alleged police abuses which included: violence against student protesters; the fabrication of drug-related charges against over a 100 individuals in the city of Mayaguez; the violent and inhumane eviction of members of the Villas del Sol squatter community, including the denial of fresh water to the community for eight months; the de-certification of the Puerto Rico Bar Association [official website, in Spanish] and other actions to stifle dissent. Residents of Puerto Rico, an unincorporated US territory, are US citizens and have the same federal First Amendment and due process [Cornell LII backgrounders] rights in relation to the island's government as a mainland US citizen would have against a state government.




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Malaysia court rules against indigenous people in land rights suit
Michael Haggerson on September 8, 2011 2:49 PM ET

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[JURIST] The three-judge Malaysian Federal Court [official website] on Thursday ruled unanimously against indigenous people [case materials, in Malay] fighting against the Sarawak government's seizure of land to build a dam. The court had agreed to hear the suit [JURIST report] in March. The ruling caps a more than decade-long legal battle [AP report] which began when the Sarawak government started seizing land in 1997. Almost USD $2.3 billion has been spent on the Bakun Dam project which has created a reservoir approximately 260 square miles large. Two of the judges refused to answer whether the seizure was unconstitutional and instead dismissed the appeal on the grounds that the issues "were not raised or properly canvassed before the court." The judges stated that if the plaintiffs were not satisfied with the amount of compensation then that is a matter for arbitration, not for the court. The third judge dismissed the appeal on the grounds that the seizure was constitutional. The Center for Orang Asli Concerns [advocacy website] expressed disappointment in the ruling [press release]. Counsel for the plaintiffs were disappointed that the constitutional issues were not resolved, but looked forward to resolving the issues in future suits. There are currently more than 100 unresolved land rights suits filed by indigenous people in Malaysia's lower courts.

In December, the US government pledged to support the UN Declaration on the Rights of Indigenous Peoples [JURIST report], a non-binding UN treaty expressing support for the rights of indigenous peoples. The US was the last member to lend its support to the treaty. In August 2010, UN Secretary General Ban Ki-moon [official website] called on governments to improve the living conditions of indigenous peoples [JURIST report] and support the UN Declaration on the Rights of Indigenous Peoples.




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Federal appeals court upholds life sentences for juveniles convicted of murder
Andrea Bottorff on September 8, 2011 1:41 PM ET

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[JURIST] The US Court of Appeals for the Eleventh Circuit [official website] on Wednesday upheld a ruling that juveniles convicted of murder may be sentenced to life imprisonment without parole [opinion, PDF]. Kenneth Loggins was convicted of brutally murdering a hitchhiker in 1994, when he was 17 years old, and was originally sentenced to death. However, in 2006 his sentence was lessened to life imprisonment without parole, after the US Supreme Court [official website] ruled in Roper v. Simmons that juveniles convicted of murder could not receive the death penalty [JURIST report]. Loggins appealed the lesser sentence, arguing that sentencing juveniles to life in prison without parole is cruel and unusual punishment [Cornell LII backgrounder] and violates the Eighth Amendment [text]. However, the court disagreed:
As required by Alabama law, at his resentencing Loggins was mandatorily sentenced to life without parole the same as if it had been the maximum and only sentence prescribed for him and his crime from the beginning. The issue, then, is whether it is unconstitutional to sentence a defendant who committed a murder while he was a juvenile to a mandatory sentence of life without parole. Loggins claims that it is, but he has not cited a single decision of any federal court that even comes close to holding that...Given the absence of any support for Loggins' claims about the mandatory nature of the life without parole sentence imposed on him and given the presence of Supreme Court decisions strongly indicating that his claims have no merit, he has failed to carry his burden of establishing that no fairminded jurist could agree with the Alabama courts' rejection of those claims.
The appellate judges said that, despite the Roper decision, a juvenile may still be convicted of a "capital offense" and given the strictest sentence allowed under state law, as long as it is not the death penalty.

Other states also permit sentencing juveniles to life imprisonment without parole. Last November, the American Civil Liberties Union (ACLU) [advocacy website] filed a lawsuit [JURIST report] in the US District Court for the Eastern District of Michigan [official website] against Michigan government officials, claiming that state's juvenile sentencing laws allowing life imprisonment without parole were unconstitutional. According to the ACLU, the US is the only country to sentence children to life in prison without parole. In May 2010, the US Supreme Court held [JURIST report] in Graham v. Florida [Cornell LII backgrounder] that the Eighth Amendment ban on cruel and unusual punishment prohibits the imprisonment of a juvenile for life without the possibility of parole as punishment for the juvenile's commission of a non-homicide offense.




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Florida ACLU challenges mandatory drug screening for state welfare applicants
Dan Taglioli on September 8, 2011 1:31 PM ET

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[JURIST] The American Civil Liberties Union of Florida (ACLUFL) [advocacy website] on Wednesday filed a federal class action lawsuit [complaint, PDF; press release] seeking to enjoin implementation of the recently passed state law that mandates drug testing for individuals seeking Temporary Cash Assistance (TAC). The lawsuit was filed in the US District Court for the Middle District of Florida [official website] on behalf of a class led by Luis Lebron, a 35-year-old Orlando resident, Navy veteran and full time University of Central Florida student who applied for TAC to help support his four-year-old son. Lebron meets all the criteria for aid but refused to submit to the drug test on the principle that it is an infringement of his Fourth Amendment rights against unreasonable search and seizure. In effect since July 1, the new law [Fla Stat 414.0652 text] was signed by Governor Rick Scott [official website] at the end of May and requires applicants for welfare benefits under the Temporary Assistance for Needy Families (TANF) [official website] program to submit to and fund a urinalysis for substance screening. Individuals who pass receive reimbursement for the cost of the test, and those who fail lose their TANF benefits for one year. The ACLU complaint notes that the Supreme Court has held that suspicionless drug testing by the government is an unreasonable search that violates the Fourth Amendment, the only exceptions being for substantial public safety concerns and students in the public school system. TANF is a federal block grant program passed under 1996 welfare reform legislation aimed at turning welfare into a temporary assistance program.

The ACLUFL filed suit [JURIST report] in June challenging Scott's executive order mandating state agencies to enact pre-employment drug screening for all prospective employees and provide for random drug testing of all current agency employees regardless of classification. The governor issued Executive Order 11-58 [text, PDF] in March and directed the drug testing policy to go into effect by May 21, 2011. The challenge was brought on behalf of a public employees union representing 50,000 public workers affected by the order. In the complaint, the ACLUFL argued that the order violates both the Fourth Amendment's prohibition of unreasonable governmental searches and case law stating that drug-testing without suspicion is unreasonable except under certain circumstances, such as when employees are involved in "safety-sensitive" positions. Special counsel for the union also argued that the order unfairly singles out public workers.




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UK inquiry: Iraq citizen's death result of abuse by soldiers
Dan Taglioli on September 8, 2011 11:28 AM ET

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[JURIST] A three-year probe into abuse of military detainees in Iraq was finalized Thursday with the release of a report that found numerous British soldiers were involved in specific episodes of abuse of Iraqi citizens. The independent inquiry was led by retired judge William Gage and focused on the detention of 10 Iraqis arrested at a hotel in 2003 on suspicion of insurgency. One man, Baha Mousa, died in custody from what was concluded [AFP report] to be a combination of soldier-inflicted injuries and a generally weakened state resulting from his detention. Mousa and the other Iraqi detainees were hooded, handcuffed and held in stress positions by the British soldiers and were subjected to a series of violent assaults. Mousa, a father of two, served as the hotel's receptionist and died about 36 hours after being detained, sustaining 93 separate injuries including fractured ribs and a broken nose. Although the use of hooding and painful stress positions was banned by the British government in 1972, Gage found a lack of knowledge of this prohibition, which he reportedly blamed on "corporate failure" by the UK's Ministry of Defence (MOD) [official website]. The report also accused other soldiers of having knowledge of the abuse but not the "moral courage" to report the incidents.

The UK announced the public inquiry [JURIST report] in 2008 after the nine other Iraqis alleged torture at the hands of British troops and sued the MOD for damages. Charges were dropped in 2007 against six British soldiers accused of involvement with Mousa's death, but one accused soldier, Corporal David Payne, pleaded guilty [JURIST reports] in 2006 to a charge of inhumane treatment, becoming the first British soldier to admit commission of a war crime in Iraq. The corporal was singled out in Thursday's report as conducting the final violent assault on Mousa before the prisoner died. Although he pleaded guilty to inhumane treatment of the detainees, Payne pleaded not guilty to manslaughter and perverting the course of justice. A UN report released just last month analyzed the current human rights situation in Iraq and confirmed that human rights abuses in the country continue [JURIST report] despite the drawdown of foreign troops, such as in 2010 when Human Rights Watch (HRW) [advocacy website] reported that Iraqi detainees were being repeatedly tortured [JURIST report] in a secret prison in Baghdad.




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ACLU: Post-9/11 security measures eroding 'core values'
Erin Bock on September 8, 2011 8:59 AM ET

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[JURIST] The American Civil Liberties Union (ACLU) [advocacy website] released a report [text, PDF] on Wednesday claiming that the US is diminishing its "core values" with regard to various counterterrorism measures put in place during the 10 years since the 9/11 attacks [JURIST news archive]. To support this contention, the report cites to US policies regarding indefinite military detention for terrorism suspects, the use of torture on terrorism suspects and enemy combatants, racial and religious profiling, and domestic surveillance and wiretapping. The report posits that these policies run deeper than what is known by the American people, civil liberties continue to be violated in secret and that future violations are imminent. The report calls upon US citizens to demand national security measures that do not encroach upon civil liberties and to urge government leaders to put an end to policies and programs that do not align themselves with these values:
We look to our leaders and our institutions, our courts and our Congress, to guide us towards a better way, and it is now up to the American people to demand that our leaders respond to national security challenges with our values, our unity—and yes, our courage—intact. Our country is strong. And it is our fundamental values that are the very foundation of our strength and security.
The ACLU acknowledged that the government has sought to cease certain questionable practices, citing President Barack Obama's directive to close the Guantanamo Bay military prison [JURIST news report], but stated that other questionable practices remain "core elements of [US] national security strategy today."

One practice that the ACLU report criticized was the government's practice of using cell phone location data to track individuals suspected of terroristic or criminal acts The ACLU is currently involved in litigation and investigations pertaining to requests for information filed under the Freedom of Information Act (FOIA) [text] regarding the Department of Justice's (DOJ) [official website] use of this practice. The US Court of Appeals for the District of Columbia Circuit [official website] on Wednesday ordered [JURIST report] the DOJ to disclose docket information in certain cases, finding that privacy concerns did not outweigh the public interest goals of the FOIA. Last month the group announced that their affiliates were sending approximately 375 requests for information [JURIST report] in 31 states to reveal how law enforcement uses location data tracking on cell phones. Most jurisdictions have never encountered cell phone tracking as a legal question, so police are generally not required to obtain a warrant. The ACLU is demanding a review of information from each targeted department, including: if probable cause warrants are obtained to access cell phone location data, statistics on how frequently law enforcement gathers this data, how much money is being spent on cell phone tracking, and any other policies or procedures used to acquire cell phone location data. The ACLU also supports the Geolocation Privacy and Surveillance Act [materials], introduced to Congress in June, which would require government agencies to obtain a probable cause warrant before seeking location data.




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Germany high court rejects constitutional challenges to Europe stimulus
Dan Taglioli on September 7, 2011 3:41 PM ET

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[JURIST] Germany's Federal Constitutional Court [official website, in German] on Tuesday rejected as unfounded three constitutional complaints against German and European legal instruments and other measures in connection with both the European Monetary Union rescue package and the financial aid package for Greece. The high court ruled [press release] that by voting through national acts that implement the broader European measures, the Bundestag, the national Parliament of the Federal Republic of Germany [official website], did not unconstitutionally impair its own ability to adopt and control the nation's budget, nor did it infringe on the budget autonomy of future parliaments. The court's approval of the Monetary Union Financial Stabilisation Act, which authorizes the aid for Greece, and the Act instituting the European Financial Stabilisation Mechanism (EFSM) [materials], was welcomed by euro zone nations [AFP report] and the European Commission, and hailed by German Chancellor Angela Merkel [official website] as validation of her much criticized euro zone policy. Additionally, share prices across Europe markets soared following the court's announcement, with German stocks peaking at a rise of more then three percent.

In May of last year the German constitutional court refused to issue a temporary injunction [JURIST report] against the German government's €22.4 billion ($28.5 billion) contribution to the bailout package for Greece, which has been gripped by a dire debt crisis [BBC backgrounder] and faces severe austerity measures as it grapples with its debt. The court held that the complainants seeking the injunction did not produce any concrete evidence that their rights under Germany's Basic Law could be "seriously and irreversibly" affected as a result of the guaranteed loan. The court's press release also noted that potential liability risk as a result of the contribution is outweighed by reducing the risks of damaging Germany's national economy as a result of instability of the European Monetary Union. The EU and International Monetary Fund (IMF) [official website] announced the initial €110 billion bailout package for Greece earlier that month, and it was subsequently approved by euro zone leaders [BBC report].




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Federal appeals court upholds indefinite detention of Guantanamo detainee
Dan Taglioli on September 7, 2011 1:22 PM ET

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[JURIST] The US Court of Appeals for the District of Columbia Circuit [official website] on Tuesday affirmed [opinion, PDF] the 2010 denial of petition for a writ of habeas corpus [Cornell LII backgrounder] for Guantanamo [JURIST news archive] detainee Shawali Khan [NYT profile]. Khan is an Afghan citizen who, at the time of his capture in mid-November 2002, lived in Kandahar, Afghanistan, and is accused of belonging to Hezb Islami Gulbuddin (HIG) [GlobalSecurity backgrounder], an active anti-American Afghan insurgency group with ties to the Taliban and al Qaeda [JURIST news archive]. On appeal, Khan contended there is insufficient reliable evidence in the form of government-offered intelligence reports to establish that he was part of HIG at the time of his capture. The court explained its standard of review in evaluating Khan's appeal:
Whether a detainee was "part of" an associated force is a mixed question of law and fact. That is, whether a detainee's alleged conduct is sufficient to make him "part of" a force and whether the alleged connections between that force and al Qaeda and/or the Taliban are sufficient to render it an "associated force" are legal questions that we review de novo. Whether the government has proven that conduct and those connections, however, are factual questions that we review for clear error.
After a lengthy analysis of evidence and the district court's findings, the appeals court found that there was no clear error of law or fact and affirmed the denial of Khan's petition.

Last September, Judge John Bates of the US District Court for the District of Columbia [official website] ruled [opinion, PDF] that the US government can indefinitely hold Khan [JURIST report] at the detention facility in Guantanamo. Lawyers for Khan have argued that he was a shopkeeper in Kandahar and not involved with fighting against American forces. They contended that Khan was captured by corrupt Afghans who turned him over to American forces and lied about his involvement with insurgents. The defense also presented evidence that HIG had no presence in the Kandahar region when Khan was captured. The case against Khan relies heavily on intelligence concurrently gathered by US intelligence collectors through several informants, some of whom are disaffected members of HIG. According to the court's opinion, such intelligence ultimately led to a decision by US military officials to neutralize the HIG cell, including the execution of an operation to capture Khan at his shop. The operation was a success, and Khan's home and shop were searched after his arrest, yielding a variety of physical evidence in the form of notebooks and letters. Heavily redacted classified intelligence reports state that the search of Khan's properties uncovered further, particularly incriminating evidence that confirmed his role in the Kandahar HIG cell.




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Federal appeals court orders DOJ to disclose cell phone tracking case information
Ashley Hileman on September 7, 2011 10:47 AM ET

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[JURIST] The US Court of Appeals for the District of Columbia Circuit [official website] on Tuesday ordered [opinion, PDF] the Department of Justice (DOJ) [official website] to disclose docket information of certain cases in which the DOJ used cell phone location data to track criminal suspects. The suit was filed by the American Civil Liberties Union (ACLU) [advocacy website] in July 2008 under the Freedom of Information Act (FOIA) [text], with the court asked to determine whether the public interest goals of the FOIA outweighed the privacy concerns of disclosing the information. The DOJ supported its argument against disclosure by citing Exemption 7(C), which states that "records or information compiled for law enforcement purposes" may be withheld "to the extent that disclosure could reasonably be expected to constitute an unwarranted invasion of personal privacy." However, the court found that because the privacy interests defendants retain regarding the facts of their convictions or public guilty pleas fall on the lower end of the spectrum, disclosure of facts so related does not constitute an unwarranted invasion of privacy, making Exemption 7(C) inapplicable. Additionally, the court supported its decision by distinguishing it from cases that resulted in more extensive disclosures with Judge Merrick Garland writing:
In this case, however, disclosure will reveal only the "bits" not the "whole." As already discussed, the most that disclosure is likely to lead to is the fact of a single conviction, not a comprehensive scorecard of a person's entire criminal history across multiple jurisdictions. Nor is there a web of statutory or regulatory policies obscuring that information, nor much expense nor logistical difficulty in gathering it.
The court's decision affirmed in part that of the US District Court for the District of Columbia [official website], which also held that disclosure of information related to cases in which persons were convicted or entered public guilty pleas was appropriate given the lower privacy interests. However, the appeals court remanded the issue of whether disclosure is appropriate in cases involving individuals who were acquitted or whose cases were dismissed or sealed.

The ACLU is not finished with its investigation into how governments use cell phone location data to track criminal suspects. Last month the group announced that their affiliates were sending approximately 375 requests for information [JURIST report] in 31 states to reveal how law enforcement uses location data tracking on cell phones. Most jurisdictions have never encountered cell phone tracking as a legal question, so police are generally not required to obtain a warrant. The ACLU is demanding a review of information from each targeted department, including: if probable cause warrants are obtained to access cell phone location data, statistics on how frequently law enforcement gathers this data, how much money is being spent on cell phone tracking, and any other policies or procedures used to acquire cell phone location data. The ACLU also supports the Geolocation Privacy and Surveillance Act [materials], introduced to Congress in June, which would require government agencies to obtain a probable cause warrant before seeking location data.




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Rights group urges UN investigation into alleged Sri Lanka war crimes
Ashley Hileman on September 7, 2011 9:40 AM ET

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[JURIST] Amnesty International (AI) [advocacy website] on Wednesday criticized Sri Lanka's investigation into allegations of war crimes committed during its 26-year civil war with the Liberation Tigers of Tamil Eelam (LTTE) [JURIST news archive] and urged the UN to conduct an independent investigation [report, PDF] to ensure justice for the victims and their families. The report argues that the Lessons Learnt and Reconciliation Commission (LLRC), established by President Mahinda Rajapaksa [official website] in 2010 to address allegations of human rights violations during the last months of the war, is ineffective in nearly every way and does not meet international standards on national commissions of inquiry. Instead, AI contends that the LLRC exists merely to "deflect international pressure and silence internal critics." According the the report, the commission has failed to investigate witness testimony that would help to establish the identities of perpetrators as well as failed to protect the witnesses from threats and retaliation. In addition to addressing these shortcomings, AI desires an independent investigation for two other reasons, which it deems crucial:
(1) to protect the global principle of accountability for international crimes, and prevent the establishment of a negative precedent for other states that may emulate Sri Lanka's attempt to flout international law so egregiously; and (2) to help the process of reconciliation inside Sri Lanka through findings issued by a neutral outside body free of perceptions of bias, that can establish the truth and provide justice for the crimes committed by all sides to the conflict, including the LTTE, government forces and their affiliates.
Amnesty International's Asia Pacific Director warned that the international community "must not be deceived into viewing the LLRC as a credible replacement for an international inquiry" and that this is the only way the "process of post-conflict reconciliation [can] begin to move forward."

AI has not been the only organization to criticize the conduct of the Sri Lankan government in handling affairs related to the war. Last month, Human Rights Watch (HRW) [advocacy website] criticized [JURIST report] a report released by the Sri Lankan government for not taking responsibility for alleged violations of the laws of war. The Sri Lankan Ministry of Defense [official website] released its report entitled, "Humanitarian Operation Factual Analysis", where for the first time it admitted that the military caused civilian deaths near the end of the civil war. The report detailed numerous alleged abuses of LTTE against civilians including using them as human shields. Sri Lanka says it took reasonable steps to avoid civilian casualties. Secretary of Defence Gotabaya Rajapaksa [official profile], in releasing the report said: "The false claims and allegations made by Tamil Diaspora together with the LTTE international network will be laid to rest with the release of the factual analysis reports." Still, HRW criticized the report for its lack of discussion over the military's responsibility for alleged war crimes such as "frequent indiscriminate shelling of civilian areas" and summary executions of LTTE fighters. Brad Adams, Asia director at HRW, said: "The Sri Lankan government is finally admitting that its forces caused civilians losses during the conflict's final months, but unconvincingly claims no responsibility. This is just the latest and glossiest effort to whitewash mounting evidence of government atrocities during the fighting."




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Federal appeals court allows Arizona same-sex couples' insurance benefits
Julia Zebley on September 7, 2011 8:56 AM ET

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[JURIST] The US Court of Appeals for the Ninth Circuit [official website] ruled [text, PDF] Tuesday that House Bill 2013 [text, PDF], a law rescinding health benefits for same-sex couples in the public sector, is in violation of the equal protection clause of the Constitution. The ruling upholds an injunction issued by a district court that has temporarily reinstated these benefits, although the law itself has not fully been ruled on in state courts. The three judge-panel echoed many of the district court's sentiments, rejecting arguments from the state of Arizona that the case created an unequivocal right to health care and that the law was not rationally related to promoting marriage nor did it significantly balance the budget:
Defendants nevertheless contend on appeal that this law is rationally related to the state's interests in cost savings and reducing administrative burdens. As the district court observed, however, the savings depend upon distinguishing between homosexual and heterosexual employees, similarly situated, and such a distinction cannot survive rational basis review.
A representative for Governor Jan Brewer (R) [official website] said they are considering appealing the ruling [Arizona Republic report] and that the court had created an inequality by making it impossible to eliminate benefits for same-sex couples, but permissible to eliminate them for opposite sex couples.

A 2008 executive order from then-governor Janet Napolitano expanded health care benefits to all domestic partners of government employees, gay or straight. The next year, Brewer passed House Bill 2013 in the midst of a state budget crisis, which revoked health care benefits to domestic partners and children still on their parents' plan. However, the law was only enforced on homosexual domestic partners, and came into effect in January 2011. Arizona banned same-sex marriage [JURIST report] in 2008.




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California high court hears arguments on standing in Proposition 8 case
Julia Zebley on September 7, 2011 7:47 AM ET

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[JURIST] The California Supreme Court [official website] on Tuesday heard oral arguments [case backgrounder] on whether intervening advocacy groups can defend Proposition 8 [text; JURIST news archive] in court, in response to a certified question [order, PDF; JURIST report] by the US Court of Appeals for the Ninth Circuit [official website]. When Judge Vaughn Walker struck down the same-sex marriage ban [JURIST report] 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 [advocacy website] and other groups to defend the law.

Several media outlets interpreted the court as being in favor of granting standing. Lambda Legal [advocacy website], one of the plaintiffs, called the court's potential ruling impossible to predict [press release] and remained optimistic: "We continue to hope that the Court will ultimately decide that small groups of unelected individuals who are answerable to no one should not be able to act on behalf of the state."

A judge for the US District Court for the Northern District of California [official website] in June rejected a motion by Proposition 8 supporters to vacate Walker's holding that the same-sex marriage ban is unconstitutional. In March, 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 the appeal is pending. The Ninth Circuit heard oral arguments [video; JURIST report] in Perry v. Schwarzenegger [case materials] at the end of 2010. The hearing was divided into two one-hour sessions, with the first section focusing on the issue of standing, and the second focusing on Proposition 8's constitutionality.




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UK to allow cameras in criminal courts
Sarah Posner on September 6, 2011 2:48 PM ET

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[JURIST] UK Justice Secretary Kenneth Clarke [Guardian profile] announced Tuesday that cameras will be allowed into criminal courts in the UK and Wales to improve transparency in courts. Two acts of Parliament [official website] in place since 1925 have banned filming [BBC report] in both Welsh and English courts. Clarke believes that this change will help to improve public confidence [Guardian report] in the criminal justice system. Filming will only cover the summary remarks made by judges and not victims, witnesses or offenders. Although Scotland does not have a ban on cameras, all parties must agree to allow the case to be broadcast. Initially, cameras will be allowed in the court of appeals and eventually expanded to the crown court, in accordance with consultations with the judiciary.

In June, the Philippines Supreme Court [official website] said that it would allow the live broadcast [JURIST report] of the November 2009 Maguindanao Massacre [CSM backgrounder; JURIST news archive] trial subject to guidelines set by the court. In September 2010, US federal judges reached an agreement on a pilot project allowing certain civil trials to be televised [JURIST report]. Federal appellate judge David Sentelle [official profile] said that, while the details still needed to be worked out, the judges agreed that the faces of jurors and witnesses will not be recorded and that either party to the suit can opt out of the trial being televised.




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Ukraine threatens international arbitration over Russia oil dispute
Sarah Posner on September 6, 2011 1:54 PM ET

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[JURIST] Ukranian President Viktor Yanukovych [BBC profile] on Tuesday threatened to take Russia to international arbitration over gas disputes. Ukraine relies heavily on Russian oil imports [Reuters report], and its territory provides transit for 80 percent of Russia's oil supplies to Europe. Yanukovych would like to get out of a 10-year deal signed with Russia in 2009, but Russian President Dmitry Medvedev stated that this would only be possible if Ukraine joined the Russian-led customs union. Kiev has repeatedly denied this offer, instead threatening to take this issue to Stockholm arbitration court. Yanukovych has contented that the price for gas is unfair and states that the 2001 accords [AFP report] signed by former Ukrainian prime minister Yulia Tymoshenko [personal website; JURIST news archive] should serve as the basis of gas relations between Ukraine and Russia. Yanukovych said that it is currently overpaying for oil by about $5 to $6 million annually. The EU has criticized Yanukovych over how he handled the trial of Tymoshenko.

In July, a Ukrainian court dismissed [JURIST report] Serhiy Vlasenko, a lawyer representing Tymoshenko, from judicial proceedings. Vlasenko had been defending Tymoshenko in a criminal case related to United Energy Systems of Ukraine (UESU), an energy company at one time headed by the former prime minister. The Pechersky District Court of Kiev dismissed Vlasenko saying he was responsible for systematic violation of order in the court, in contempt of court and responsible for obstruction of justice with disregard for the rule of law. Also in July, the Security Service of Ukraine (SBU) [official website, in Ukrainian] announced that they are launching a criminal investigation [JURIST report] into UESU, an energy company at one time headed by former Tymoshenko. The SBU is investigating UESU's potential embezzlement of USD $405 million from the government.




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Europe rights commissioner urges probes into secret prisons
Jennie Ryan on September 6, 2011 11:52 AM ET

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[JURIST] The Council of Europe [official website] Commissioner for Human Rights Thomas Hammarberg [official profile] on Monday urged [press release] Lithuania, Poland and Romania to investigate the roles their governments played in the US Central Intelligence Agency (CIA) [official website] program of "secret detention and torture" of terrorism suspects. According to Hammarberg, the CIA collaborated with its foreign counterparts in detaining "high value detainees" for periods of up to four-and-a-half years in secret "Black Sites." Hammarberg alleges that during their detainment enhanced interrogation techniques [JURIST news archive] were used on the terror suspects. These techniques included "forced nudity, shackling in stress positions, extended sleep deprivation, dietary manipulation, slapping, walling and waterboarding." The commissioner called on the three nations to investigate these allegations:
At the height of the "war on terror", Poland, Romania and Lithuania extended quite extraordinary permissions and protections to their American partners—while respecting conditions of total secrecy. Today, years later, darkness still enshrouds those who authorised and ran the Black Sites on European territories. The full truth must now be established and guarantees given that such forms of co-operation will never be repeated. Effective investigations are imperative and long overdue.
Hammarberg warned that the cost of refusing to investigate the alleged secret detention and torture practices could damage the European system of human rights protection.

Many have come under fire for special detention and torture practices. In June, US Attorney General Eric Holder [official website] announced that he would continue investigating the deaths of two detainees [JURIST report] who died during interrogations by the CIA. In January, a federal judge told the CIA that it must investigate the destruction of the interrogation tapes [JURIST report] related to individuals detained after 9/11 [JURIST news archive] and prevent similar incidents from happening in the future. In February, human rights advocacy groups urged the signatory states of the UN Convention Against Torture (CAT) [text] to pursue criminal charges [JURIST report] against former US president George W. Bush [JURIST news archive] in connection with allegations of enhanced interrogation techniques. Advocacy groups have also called for investigations into Bush-era torture practices by the Spanish government [JURIST report].




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Bahrain court hears protester appeals
Jennie Ryan on September 6, 2011 10:59 AM ET

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[JURIST] A special security court in Bahrain [JURIST news archive] heard the appeals of jailed anti-government protesters on Tuesday. According to the Bahrain Center for Human Rights [official website], the National Safety Court of Appeal, a court composed of military prosecutors and civilian and military judges, heard the appeals of 21 activists [profiles, PDF] who were sentenced to prison after the Bahraini government imposed martial law [JURIST report] to crack down on protesters in the region. Eight of the protesters arrested and jailed received life sentences, including prominent Shiite leaders Hassan Mushaima and Abdul Jalil al-Singace. The protesters have been on a hunger strike [JURIST report] to show support for doctors jailed for treating those injured in during the demonstrations. A lawyer for one of the defendants said that court had been adjourned [BNA report] with the next appearance before the court scheduled for September 28.

These appeals come days after Bahraini King Hamad bin Isa Al Khalifa [official profile] announced he would dismiss charges against some of the protesters [JURIST report] detained for their participation in pro-democracy demonstrations in the country. In June, the 21 activists were sentenced [JURIST report] after being charged [charges, PDF] with "plotting to topple the leadership of the Kingdom of Bahrain." Also in June, Khalifa announced that an independent commission will investigate human rights violations [JURIST report] related to the country's pro-democracy protests. Earlier that month, the UN Office of the High Commissioner of Human Rights announced that Bahrain agreed to permit a UN commission [JURIST report] to investigate human rights violations related to protests. The National Safety Courts were instituted in mid-March and have been internationally criticized, most recently [JURIST report] by Human Rights Watch (HRW) [advocacy website]. The court also sentenced nine citizens [JURIST report] to 20 years in prison for kidnapping a police officer in May. In April, the court handed the death sentence to four protesters, a rarity in Bahrain, and upheld the sentences [JURIST reports] for two of the men, who were accused of murdering police officers.




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Myanmar government forms human rights commission
Alexandra Malatesta on September 6, 2011 10:42 AM ET

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[JURIST] Myanmar's government on Monday formed the Myanmar National Human Rights Commission (MNHRC) to promote and safeguard the country's constitutional rights. Members of the commission include former government officials, diplomats, academics, doctors and lawyers, some of whom have made statements in the past defending the country's human rights record. The commission has been met with skepticism [Irrawaddy report] regarding the potential veracity of the group's findings and whether it will have the authority and independence from the Myanmar government [JURIST news archive] to be effective. Myanmar's President Thein Stein [BBC profile] appears willing to ease international tensions and improve the regime's image [AFP report]. This will be the second attempt to create a human rights commission as the first failed in 2000 to have any impact.

The newly formed commission comes on the heels of a visit by UN Special Rapporteur Tomas Ojea Quintana [official profile], who urged the government [JURIST report] to improve its rights record [press release]. Quintana said that continued ethnic violence [JURIST report] in Myanmar presents "serious limitations" to the government's transition to democracy. In May, Myanmar began releasing close to 15,000 prisoners, but many human rights groups claim the government is still holding many more political prisoners. Quintana urged Myanmar's military government to release 2,202 political prisoners [JURIST report] last December. He called for the release of the "prisoners of conscience," many of whom, he says, suffer from health problems as a result of the harsh detention conditions. Quintana claims the release is necessary to promote democracy. In March, Myanmar underwent a transfer of power [BBC report] from a military regime to a civil system after holding its first elections in 20 years. However, critics argue that the new regime is merely a sham since it is made up of military generals and with the military party winning 80 percent of the vote.




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ICTY sentences former Yugoslav army chief to 27 years
Alexandra Malatesta on September 6, 2011 10:01 AM ET

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[JURIST] The International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] on Tuesday convicted [judgment, PDF] ex-Yugoslav army chief Momcilo Perisic [ICTY profile, PDF; JURIST news archive] for crimes against humanity and war crimes [press release], committed during the wars in Bosnia and Croatia, sentencing him to 27 years in prison. He was found guilty of 12 out of 13 charges, including aiding and abetting murders occurring during the Srebrenica massacre [JURIST news archive], inhumane acts, attacks on civilians, unjust persecutions and having knowingly supplied "extensive logistical assistance" to the Army of Republika Srpska (VRS) and the Army of Serbian Krajina (SVK) that would be used to torture and kill hundreds of Muslim civilians. He was also found guilty on the basis of command responsibility for the inhumane acts of his officers and subsequently failing to punish them. The judgement against Perisic states:
It would be difficult to over state the magnitude of the crimes perpetrated in Sarajevo. The siege lasted for nearly four years during which Sarajevo civilians endured conditions of terror due to the indiscriminate nature of the attacks. Thousands of men, women and children were killed, and tens of thousands injured. In particular, Sarajevo civilians were regularly shelled and sniped in the course of [Perisic's] tenure as Chief of the VJ General Staff, a lengthy time span. ... Civilians were targeted in their homes, at places of worship, in hospitals and schools. Women, children, and the elderly were not spared.
Perisic is the first Yugoslav convicted [AP report] by the UN for crimes committed during the war in Bosnia. Perisic is entitled to time served and has a right to appeal. Ratko Mladic [JURIST news archive], with whom Perisic allegedly collaborated, is still awaiting trial for genocide at The Hague.

In March, UN prosecutors demanded that Perisic 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 [JURIST report] in October 2008, and closing arguments concluded at the end of March. ICTY Prosecutor Mark Harmon said Perisic was one of the "principal collaborators" of late Yugoslav president Slobodan Milosevic [JURIST news archive], claiming in his opening statement that Perisic "created an environment of impunity, wherein his subordinates were encouraged and did persist to commit crimes, knowing there would be no consequences." Perisic turned himself in to the UN in 2005, surrendering to officials [JURIST reports] from the ICTY.




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Chirac absent as corruption trial proceeds
Dan Taglioli on September 5, 2011 3:18 PM ET

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[JURIST] The trial of former French president Jacques Chirac [BBC profile; JURIST news archive] opened in his absence on Monday after Judge Dominique Pauthe of the 11th Criminal Court of Paris agreed to continue the proceedings without him. Chirac and his legal team filed documents with the court on Friday claiming Chirac is too ill to face his corruption trial [JURIST report], just three days before the trial was scheduled to continue after being delayed in March [JURIST report]. Chirac's lawyers on Friday submitted to the judge a letter with four pages of attached medical records, including a brain scan, suggesting the former president may have a condition linked to Alzheimer's disease [MedLine backgrounder]. The lawyers' report did diagnose Chirac with anosognosia, a mental disorder where one does not acknowledge one's illness due to brain damage often caused by a stroke. Chirac is being tried for allegedly misusing funds during his time as Paris mayor in 1990.

The French Court of Cassation [official website, in French], the country's highest appeals court, ruled in May that the corruption trial against Chirac could continue, rejecting a constitutional challenge [JURIST report] brought by one of his co-defendants. Last September, the Paris city council accepted a settlement deal [JURIST report] in which the former president agreed to pay USD $741,000 in compensation for the money paid out for false jobs. In exchange, the city agreed to drop out of the corruption suit. Chirac stated that the settlement was not an admission of guilt. A French judge placed Chirac under preliminary investigation [JURIST report] in December 2009. Chirac's trial on corruption charges marks the first time [JURIST comment] a former French president will have to answer to charges against him in a court of law. The trial is a combination of two separate corruption-related cases, in which Chirac allegedly financed the Rally for the Republic (RPR), now renamed as the Union for a Popular Movement [party website, in French], by illegally establishing fake city positions between 1977 and 1995 for party members to collect salaries totaling several million dollars.




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Mubarak trial resumes amid courtroom violence
Dan Taglioli on September 5, 2011 3:10 PM ET

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[JURIST] Violence broke out in the Egyptian court where the corruption and murder trial of former president Hosni Mubarak [Al Jazeera profile; JURIST news archive] resumed on Monday for a third session. As the first witness for the prosecution began testimony during the trial's third hearing, plaintiffs and their lawyers clashed with Mubarak supporters [Daily News Egypt report]. The witness was a police official who testified that he heard over wireless networks "unilateral" orders to deploy firearms to protect the Ministry of Interior [official website] headquarters on Jan. 28. Outside the court, demonstrators tussled with police, with several injuries reported. Hundreds of victims' families and protesters attempted to break through the main gates and enter the court building. Riot police swung batons and briefly clashed with the protesters, who threw stones at the security forces. Mubarak is on trial for murder, attempted killing of protesters and other charges related to general abuse of power [Al Jazeera report] stemming from his response to pro-democracy demonstrations in Egypt [JURIST news archive] earlier this year. Mubarak's sons, Gamal and Alaa, are also on trial for corruption charges.

Mubarak's trial began on August 3 [JURIST report] with Mubarak and his sons pleading not guilty to all charges. Presiding Judge Ahmed Rifaat last month decided to end live TV broadcasts [JURIST report] of subsequent proceedings amid protests from the families of victims and praise from several courtroom lawyers who opposed the broadcasts. Officials chose a new location for Mubarak's trial for security reasons after reporting [JURIST reports] that the trial would take place at a convention center in downtown Cairo. In July, an Egyptian criminal court postponed the trial [JURIST report] of former interior minister Habib el-Adly, who also faces murder charges in relation to the pro-democracy demonstrations, so it would coincide with Mubarak's trial. In March, a commission of Arab and Egyptian human rights groups accused Mubarak [JURIST report] and the police of murdering protesters during the demonstrations in Egypt. Mubarak could face the death penalty [JURIST report] if convicted of ordering attacks on protesters. Amnesty International (AI) [advocacy website] reported that at least 840 people were killed [JURIST report] and more than 6,000 injured during the Egyptian protests.




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UK PM announces investigation into alleged renditions to Libya
Julia Zebley on September 5, 2011 2:44 PM ET

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[JURIST] UK Prime Minister David Cameron [official website] on Monday gave a speech [text] on the situation in Libya [JURIST backgrounder], announcing an investigation into collusion between MI6 [official website], the overseas British Security Service, and the Libyan Security Services regarding the treatment of former Guantanamo Bay [JURIST news archive] detainees. Accusations of M16 sending detainees to knowingly be tortured by Libyan security services prompted Cameron to instruct the Detainee Inquiry [official website], created last July [JURIST report] to examine the issue.
Our relationship with the new Libya must of course deal with a series of problems from the past...[S]ignificant accusations have been reported today that under the last government relations between the British and Libyan Security Services became too close, particularly in 2003. It was because of accusations of complicity by the British Security Services in the mistreatment of detainees overseas, including rendition, that I took steps last July to sort this whole problem out. As the House will remember we took steps to bring to an end the large number of court cases being brought against the government by former inmates of Guantanamo. We have issued new guidance to security service personnel on how to deal with detainees held by other countries. And we have asked Sir Peter Gibson to examine issues around the detention and treatment of terrorist suspects overseas and the Inquiry has already said it will look at these latest accusation very carefully. My concern throughout has been to deal with these accusations of malpractice so as to enable the Security Services to get on with the vital work they do.
Papers tying M16 and the CIA to Libya [BBC report] were discovered when Libyan leader Muammar Gaddafi's [BBC profile; JURIST news archive] compound was raided last month. The Detainee Inquiry released a statement [text] confirming the investigation. Cameron also spoke on continuing to support the North Atlantic Treaty Organization (NATO) [official website] effort in Libya and aiding the new Libyan government.

Last month, The Guardian [media website] released a top secret document [JURIST report] revealing details about the interrogation policies of UK intelligence officials. The document indicated that officers from the UK security and secret intelligence agencies, MI5 [official website], and MI6, respectively, were instructed to weigh the severity of the mistreatment of a detainee with the benefits of possibly obtaining information from the prisoner. The agencies "do not participate in, solicit, encourage or condone the use of torture or inhuman or degrading treatment," the document said, though the agencies would "consider applying caveats or seeking prior assurances" if they foresee a risk of possibly mistreating or torturing a detainee. In November, the UK government announced a settlement [JURIST report] with 16 Guantanamo Bay detainees over allegations of torture. In return, the 16 detainees, 12 of whom had filed suit and four of whom were planning to, agreed to drop a lawsuit [JURIST report] against MI5 and M16. The government issued a new set of regulations regarding the use of information obtained via torture in July 2010 shortly after the human rights group Reprieve [advocacy website] filed a lawsuit [JURIST report] seeking a review of the country's torture policy.




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Trial begins for Iceland ex-PM over role in banking collapse
Julia Zebley on September 5, 2011 1:52 PM ET

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[JURIST] The trial of former Icelandic prime minister Geir Haarde [official profile, in Icelandic] began on Monday, on charges that he was grossly negligent for failing to stop the nation's banking collapse during the 2008 financial crisis [JURIST news archive]. Court convened in the Landsdomur, a special court to try cabinet ministers, with Haarde's lawyers requesting a dismissal of all charges, which carry a maximum penalty of two years in prison. Haarde argued for dismissal on six points: no proper probe had been conducted before the charges were brought against him; the indictment was vague and unclear with no specific arguments to back up the indictment; a conflict of interest with the prosecutor [RUV report, in Icelandic] in the case who advised the parliamentary committee that proposed the indictment; the procedural rules in Landsdomur court are unclear; and a lack of equal treatment guaranteed in the constitution by the court only indicting Haarde, as opposed to all four ministers implicated in the Special Investigation Committee (SIC) [official website] "Truth Report" [text, PDF]. Haarde previously pleaded not guilty in June [JURIST report]. The court is expected to rule within four weeks.

Last September, the Icelandic Parliament [official website, in Icelandic] referred charges to the Landsdomur after the SIC released a report claiming that seven Icelandic government officials acted with gross negligence in their management of the country's financial system prior to a 2008 bank collapse. The SIC determined that Haarde and former central bank head David Oddsson [official profile, in Icelandic] knew that banks were assuming overseas debt but took no action to prevent or mitigate the effects of the accumulation. The SIC also found that former minister of finance Arni Mathiessen, then-banking minister Bjorgvin Sigurdsson, former Financial Services Authority [official website] director Jonas Jonsson and central bank officials Eirikur Gundason and Ingimundur Fridriksson failed to take appropriate action when presented with information about the poor state of the country's financial sector. Iceland was hit hard [BBC backgrounder] by the financial crisis that emanated from securities related to the US mortgage market. When Kaupthing, Landsbanki and Glitnir [corporate websites] were taken over by the Icelandic government in 2008, they were holding debt equal to more than 900 percent [AFP report] of Iceland's gross domestic product, causing the country's economy to collapse and the government to rely on loans [IMF materials] from the International Monetary Fund (IMF) [official website] to meet its obligations.




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Bahrain detainees join hunger strike: rights group
Maureen Cosgrove on September 4, 2011 1:41 PM ET

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[JURIST] The Bahrain Center for Human Rights (BCHR) [advocacy website] reported on Saturday that more detainees have joined a hunger strike [press release] in protest of ongoing trials related to recent pro-democracy protests. The nearly 20 jailed doctors face charges in relation to protests and have begun fasting in objection to "continued detention of the doctors and other detainees at the Dry Docks prison, as well as the ill treatment and torture, not having access to legal counsel, and what they described as being ridiculous charges against them." Human rights activists Abdul Jalil al-Singace and Abdulhadi al-Khawaja, who were sentenced to life in prison in June, also joined the hunger strike. The detainees maintain that if the trials take place, they should be held in civil courts [Al Jazeera report] rather than military tribunals.

Bahraini King Hamad bin Isa Al Khalifa [official profile] announced last week that he will dismiss charges against some of the protesters [JURIST report] detained for their participation in pro-democracy demonstrations in the country. In June, Bahrain's Lower National Safety Court sentenced 21 activists [JURIST report] for anti-government protests conducted earlier this year. Also in June, Khalifa announced that an independent commission will investigate human rights violations [JURIST report] related to the country's pro-democracy protests. Earlier that month, the UN Office of the High Commissioner of Human Rights announced that Bahrain agreed to permit a UN commission [JURIST report] to investigate human rights violations related to protests. The National Safety Courts, special military tribunals, were instituted in mid-March under Khalifa's three-month state of emergency [JURIST report] and have been internationally criticized, most recently [JURIST report] by Human Rights Watch (HRW) [advocacy website]. The court sentenced nine citizens [JURIST report] to 20 years in prison for kidnapping a police officer in May. In April, the court handed the death sentence to four protesters, a rarity in Bahrain, and upheld the sentences [JURIST reports] for two of the men who were accused of murdering police officers. All of the charges levied in the National Safety Court have been disputed by Bahraini citizens and international rights organizations.




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Panama lawmakers approve election runoff bill
Maureen Cosgrove on September 4, 2011 11:49 AM ET

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[JURIST] Panamanian lawmakers approved a bill Saturday that requires runoffs in close presidential elections. The bill mandates that if no candidate amasses 50 percent of the vote after the election, a second round of voting would take place [Reuters report]. A presidential election is currently won by a mere majority vote. Panamanian President Ricardo Martinelli [official website, in Spanish] praised the reform bill, while critics argue the bill constitutes an effort to keep the president's Democratic Change Party [official website, in Spanish] in power. The unicameral legislature will ultimately vote to grant final approval, though opposition will likely challenge the bill in court.

Voters elected Martinelli president in May 2009 national elections "considered generally free and fair by independent observers" according to a 2010 US Department of State (DOS) [official website] Human Rights report [text]. On the other hand, local elections have been marred by controversy. Human Rights Everywhere (HRE) [advocacy website], a non profit organization, described the elections in the Ngobe-Bugle community as "confusing" and ill-timed. Martinelli won the 2009 election with over 60 percent of the vote.




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Chirac too ill to attend corruption trial: lawyers
Julia Zebley on September 4, 2011 10:54 AM ET

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[JURIST] Former French president Jacques Chirac [BBC profile; JURIST news archive], 78, and his legal team filed documents with the 11th Criminal Court of Paris on Friday claiming Chirac is too ill to face his corruption trial [press release in Le Monde, in French], just three days before the trial was slated to continue after being delayed in March [JURIST report]. Chirac is being tried for allegedly misusing funds during his time as Paris mayor in 1990. Chirac's lawyers filed an extensive neurological report with the court amid unconfirmed public reports [Journal du Dimanch report, in French] that he is suffering from Alzheimer's disease [MedLine backgrounder]. The lawyers' report did diagnose Chirac with anosognosia, a mental disorder where one does not acknowledge one's illness due to brain damage often caused by a stroke. Anticor [advocacy website, in French], an anti-corruption organization, demanded that Chirac face trial [press release, in French]. Judge Dominique Pauthe will rule on Chirac's health when the trial begins on Monday.

The French Court of Cassation [official website, in French], the country's highest appeals court, ruled in May that the corruption trial against Chirac could continue, rejecting a constitutional challenge [JURIST report] brought by one of his co-defendants. Last September, the Paris city council accepted a settlement deal [JURIST report] in which the former president agreed to pay USD $741,000 in compensation for the money paid out for false jobs. In exchange, the city agreed to drop out of the corruption suit. Chirac stated that the settlement was not an admission of guilt. A French judge placed Chirac under preliminary investigation [JURIST report] in December 2009. Chirac's trial on corruption charges marks the first time [JURIST comment] a former president will have to answer to charges against him in a court of law. The trial is a combination of two separate corruption-related cases, in which Chirac allegedly financed the Rally for the Republic (RPR), now renamed as the Union for a Popular Movement [party website, in French], by illegally establishing fake city positions between 1977 and 1995 for party members to collect salaries totaling several million dollars.




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Turkey seeks ICJ intervention in Gaza blockade
Erin Bock on September 3, 2011 5:08 PM ET

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[JURIST] Turkey's Minister of Foreign Affairs Ahmet Davutoglu [official profile] said Saturday that Turkey will take Israel to the International Court of Justice (ICJ) [official website] over the legality of Israel's Gaza Strip [BBC backgrounder] blockade. Davutoglu delivered a press statement [text] on Friday accepting the findings of a UN report [text, PDF; JURIST report] that criticized Israel for using excessive and unreasonable force during the May 2010 flotilla incident [JURIST news archive], in which Israeli forces raided several Turkish ships bound for Gaza. Davutoglu denounced the report's finding that the Gaza naval blockade is lawful. He stated that Turkey will apply for an ICJ investigation [Reuters report] of the blockade next week.

Numerous investigations into the flotilla raid have been conducted since the incident took place. The Turkish Foreign Ministry [official website] announced [JURIST report] in August 2010 that it would conduct an investigation into the raid. Two months earlier, UN Secretary-General Ban Ki-moon [official website] announced the composition [JURIST report] of the international panel of inquiry. The Israeli government has established two internal commissions to investigate its response to the flotilla, one military and one civilian [JURIST reports]. Israeli Prime Minister Benjamin Netanyahu [official website] testified before the civilian commission in August 2010 that Israel did not violate international law [JURIST report]. In July 2010, an Israeli military probe found insufficient intelligence and planning [JURIST report] in the raid in a report, but also concluded that no punishments were necessary.




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Accused Hungary Nazi dies while awaiting appeal
Julia Zebley on September 3, 2011 1:15 PM ET

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[JURIST] Alleged Nazi Sandor Kepiro died on Saturday at the age of 97, weeks after both the prosecution and the defense in his trial announced they would be be appealing his acquittal on war crimes charges [JURIST reports]. Kepiro was acquitted of participating in the 1942 Novi Sad massacre in Serbia and, ultimately, pleaded his innocence until his death, stating he had refused to shoot during the massacre. Kepiro was convicted both in 1944 and 1946 and sentenced to 10 years for involvement in the raids, but he was released and fled to Argentina. His recent acquittal stemmed from deterioration of evidence. Kepiro and his lawyer appealed so the record would reflect that Kepiro was completely innocent.

Despite the ages of the accused, prosecutions of Nazis continue around the world. Convicted Nazi commander Josef Scheungraber, 93, will likely not serve his life sentence [JURIST reports] due to mental health issues. In May, the trial of accused Nazi guard John Demjanjuk [NNDB profile, JURIST news archive] ended when he was convicted [JURIST report] but released because of his advanced age. An appeal [JURIST report] of his release is pending. In November, Nazi guard Samuel Kunz [Trial Watch profile], 89, passed away [JURIST report] in his home before he could be brought to trial. He was accused of aiding in the killing of hundreds of thousands of Jewish people at the Belzec concentration camp [HRP backgrounder].




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EU Kosovo authorities charge 10 for war crimes
Michael Haggerson on September 2, 2011 4:16 PM ET

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[JURIST] The European Rule of Law Mission in Kosovo (EULEX) [official website] on Friday charged 10 former members of the Kosovo Liberation Army (KLA) with war crimes for their actions during the 1998-1999 war in Kosovo [BBC backgrounder; JURIST news archive]. The individuals were previously arrested in March [JURIST report]. Among those charged is Fatmir Limaj, a prominent political figure in the Democratic Party of Kosovo (PDK) [official website, in Albanian]. In order for the court to try him, parliament would have to dissolve his immunity [Reuters report].

EULEX has been investigating war crimes [JURIST report] since December 2008. In May 2010, EU police arrested a former member of the KLA for suspected war crimes violations [JURIST report]. A case came to trial [JURIST report] in March 2009, resulting in a guilty verdict against a Kosovo Albanian for charges of murder, attempted murder and grievous bodily harm. The trial of two Serbian defendants was derailed [JURIST report] that month by hundreds of Serbian protesters and postponed indefinitely. Earlier this year, the Council of Europe and the UN Security Council [JURIST reports] considered allegations of organ trafficking by the KLA during the war. Kosovo controversially seceded from Serbia [JURIST report] in February 2008 and its new constitution went into effect [JURIST report] later that year.




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UN report criticizes Israel for flotilla raid
Maureen Cosgrove on September 2, 2011 2:23 PM ET

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[JURIST] The UN on Friday criticized Israel for using excessive force [report, PDF] during a May 2010 flotilla incident [JURIST news archive], in which Israeli forces raided several Turkish ships bound for the blockaded Gaza Strip [BBC backgrounder]. In a UN-produced report released by the New York Times amid objections from Turkey and Israel, the UN found that the naval blockade of the Gaza Strip was lawful but that Israel's response to Turkish ships attempting to penetrate the blockade were "excessive and unreasonable." The raid resulted in the deaths of nine Turkish passengers. The blockade was warranted, the UN conceded, but Israel should have taken alternative measures to avoid a violent confrontation:
The fundamental principle of the freedom of navigation on the high seas is subject to only certain limited exceptions under international law. Israel faces a real threat to its security from militant groups in Gaza. The naval blockade was imposed as a legitimate security measure in order to prevent weapons from entering Gaza by sea and its implementation complied with the requirements of international law... Non-violent options should have been used in the first instance. In particular, clear prior warning that the vessels were to be boarded and a demonstration of dissuading force should have been given to avoid the type of confrontation that occurred. The operation should have reassessed its options when the resistance to the initial boarding attempt became apparent.
The report is expected to be formally released by the UN later Friday. In response to the report, Turkey expelled the Israeli ambassador [VOA report] to Ankara and suspended military agreements with Israel.

Numerous investigations into the flotilla raid have been conducted since the incident took place. The Turkish Foreign Ministry [official website] announced [JURIST report] in August 2010 that it would conduct an investigation [press release, in Turkish] into the raid. Two months earlier, UN Secretary-General Ban Ki-moon [official website] announced the composition [JURIST report] of the international panel of inquiry. The Israeli government has established two internal commissions to investigate its response to the flotilla, one military and one civilian [JURIST reports]. Israeli Prime Minister Benjamin Netanyahu [official website; BBC profile] testified before the civilian commission in August 2010 that Israel did not violate international law [JURIST report]. During his testimony, Netanyahu expressed confidence that the commission would find Israeli actions to be in compliance with international law and explained the Israeli response to the flotilla in the context of the ongoing conflict between Israel and Hamas [CFR backgrounder]. Netanyahu continued to accuse Hamas of "at least four war crimes: inciting to genocide; systematically and intentionally firing on civilians; using civilians as human shields; and preventing visits by the Red Cross to kidnapped IDF soldier, Gilad Shalit." In July 2010, an Israeli military probe found insufficient intelligence and planning [JURIST report] in the raid in a report, but also concluded that no punishments were necessary. Israeli forces raided six ships attempting to deliver more than 10,000 tons of aid to Gaza in May 2010. The raid left numerous wounded and resulted in the deaths of nine pro-Palestine activists—eight Turks and one American.




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Federal appeals court partially upholds South Dakota abortion consent law
Michael Haggerson on September 2, 2011 2:13 PM ET

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[JURIST] The US Court of Appeals for the Eighth Circuit [official website] on Friday partially upheld [opinion, PDF] a South Dakota law which expanded the requirements for informed consent for abortion [HB 1166 materials]. The court upheld the provision that requires doctors to tell patients prior to an abortion "that [she] has an existing relationship with that unborn human being and that the relationship enjoys protection under the United States Constitution and under the laws of South Dakota" and that "by having an abortion, her existing relationship and her existing constitutional rights with regards to that relationship will be terminated." Planned Parenthood Federation of Minnesota, North Dakota, and South Dakota [advocacy website], which brought the suit, argued that the relationship advisories "unconstitutionally compel ideological speech by doctors" and are an attempt to inform women that abortion is morally wrong. The court stated the provision just informs the woman that she cannot be forced to have an abortion and thus does not represent an undue burden on her decision to have an abortion. However, the court upheld the lower court decision [JURIST report] to strike down the provision that required doctors to inform women seeking an abortion that their risk of suicide would go up as a result of the abortion. The court stated that the abortion advisory posed an undue burden on women because there was much debate in the medical community about the matter and a significant amount of evidence to the contrary.

The informed consent law was originally passed [JURIST report] in 2005 but has faced years of court challenges and appeals. South Dakota passed another controversial abortion law [JURIST report] in March which requires women to seek counseling at a pregnancy center and wait three days before obtaining an abortion. In July the Planned Parenthood Federation of Minnesota, North Dakota, and South Dakota and the American Civil Liberties Union of South Dakota [advocacy website] succeeded in obtaining a preliminary injunction against the law [JURIST report].




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Obama withdraws EPA smog standards
Maureen Cosgrove on September 2, 2011 1:26 PM ET

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[JURIST] US President Barack Obama on Friday requested the withdrawal of national smog standards [press release] proposed by the US Environmental Protection Agency (EPA) [official website]. The draft Ozone National Ambient Air Quality Standards [materials] would have reduced the amount of smog emissions to between 0.060 and 0.070 parts per million (ppm) from the previous 0.075 ppm. The EPA estimates that these changes would help reduce the effects of climate change and improve public health, saving the US between $13 billion and $100 billion in health care costs. The stricter smog standards, proposed by the EPA in January 2010 [JURIST report], would have replaced the Bush administration's broader 2008 national smog regulations [text], complying with scientific recommendations. In his statement, Obama recognized recent efforts to improve environmental protection, but emphasized the need to trim down regulations in light of the economic downturn:
Over the last two and half years, my administration, under the leadership of EPA Administrator Lisa Jackson, has taken some of the strongest actions since the enactment of the Clean Air Act four decades ago to protect our environment and the health of our families from air pollution. From reducing mercury and other toxic air pollution from out