October 2011 Archives


Supreme Court hears arguments on ineffective assistance of counsel
Jaclyn Belczyk on October 31, 2011 2:33 PM ET

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[JURIST] The US Supreme Court [official website] heard oral arguments [day call, PDF] Monday in two cases regarding ineffective assistance of counsel [Cornell LII backgrounder]. In both cases [JURIST report], the court is being asked to determine how poor legal advice from attorneys to clients regarding plea bargaining should impact subsequent guilty verdicts. In Lafler v. Cooper [transcript, PDF], respondent Anthony Cooper was convicted of assault with intent to murder for shooting a woman in her thigh and buttocks after his attorney advised him to not take a plea offer in the belief that there could be no finding of the requisite intent. The US Court of Appeals for the Sixth Circuit held [opinion, PDF] that the attorney's advice was unconstitutional as it amounted to ineffective assistance of counsel. One of the points argued by the state was "that when asserting an ineffective assistance claim, a defendant must show deprivation of a substantive or procedural right, and this Court has already held that a defendant has no right to a plea bargain."

In Missouri v. Frye [transcript, PDF], respondent Galin Frye was offered two deals by prosecutors during proceedings for driving with a revoked license, but Frye's attorney never informed his client about the offers and Frye pleaded guilty. The Missouri Court of Appeals held that the attorney's failure to inform his client about the plea offers amounted to unconstitutional ineffective assistance of counsel. Counsel for the state argued that "Mr. Frye has failed to show prejudice, and therefore his guilty plea remains voluntary, intelligent, and final." Counsel for the US government argued on behalf of petitioners in both cases.




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Libya militia torturing displaced Gaddafi supporters: HRW
Sung Un Kim on October 31, 2011 2:06 PM ET

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[JURIST] Militia from the Libyan city of Misrata are torturing and terrorizing the displaced supporters of deceased former leader Muammar Gaddafi [BBC obituary; JURIST news archive], according to a report [text] released Sunday by Human Rights Watch (HRW) [advocacy website]. Most of the victims are either unarmed civilians or detainees. HRW interviewed about 61 Tawerghans across the country including 26 people in detention in and around Misrata and 35 displaced residents of Tawergha currently staying in Tripoli, Heisha and Hun. Information from the interviews revealed that the Misrata militia are engaged in alleged terror activities including beating detainees to death, shooting civilians and forcing displacements. The militias are accusing the Tawerghans of committing crimes, such as rape and murder, with Gaddafi forces during their siege of Misrata, especially in March and May. Sarah Leah Whitson, director of the Middle East and North Africa division at Human Rights Watch [advocacy website], stressed the importance of rule of law:
Revenge against the people from Tawergha, whatever the accusations against them, undermines the goal of the Libyan revolution. In the new Libya, Tawerghans accused of wrongdoing should be prosecuted based on the law, not subject to vigilante justice... The entire town of Tawergha should not be punished for the crimes of some individuals. Prosecutions of people who committed serious crimes are the way forward, with respect for victims' privacy, not the forced expulsion of the entire town.
HRW recommends several measures for Misrata's civil and military leaders in order to establish justice and support the rule of law including punishment of those who harass or attack Tawerghans, clarification of orders to avoid mental and physical abuses during arrests and transfer of detainees to facilities run by the National Transitional Council (NTC) [official website] in Tripoli or Benghazi.

Last week, the interim Libyan leader Mustafa Abdul-Jalil [official profile] ordered an investigation [JURIST report] into the circumstances surrounding the capture and death of Gaddafi, which raised questions of whether the former leader was killed due to his wounds during the fight or whether he was killed by his own supporters to prevent him from implicating them in any crimes under his regime. On October 20, Gaddafi was captured and killed [JURIST report] by NTC during its seizure of his hometown, Sirte, marking the latest milestone in the Libya conflict [JURIST feature] that started in February. The Libyan government under the regime of Gaddafi was criticized by the UN High Commissioner of Human Rights Navi Pillay [official website] for war crimes [JURIST report] during the siege of Misrata.




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Supreme Court declines to rule on Utah highway crosses
Jaclyn Belczyk on October 31, 2011 1:28 PM ET

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[JURIST] The US Supreme Court [official website] on Monday declined to rule on whether crosses placed beside highways as memorials to deceased Utah Highway Patrol (UHP) [official website] troopers is an unconstitutional government endorsement of religion. The court denied certiorari [order list, PDF] in the combined cases of Utah Highway Patrol Association v. American Atheists [docket; cert. petition, PDF] and Davenport v. American Atheists [docket; cert. petition, PDF], allowing the August 2010 ruling [JURIST report] by the US Court of Appeals for the Tenth Circuit, which found found the display unconstitutional, to stand. Utah Attorney General Mark Shurtleff [official website] appealed [JURIST report] to the Supreme Court in April, arguing that the lower court improperly applied the Establishment Clause [Cornell LII backgrounder] to "passive public displays" and erroneously deemed the memorials "government speech." Justice Clarence Thomas was the lone dissenter from the denial of certiorari:
Today the Court rejects an opportunity to provide clarity to an Establishment Clause jurisprudence in shambles. A sharply divided Court of Appeals for the Tenth Circuit has declared unconstitutional a private association's efforts to memorialize slain police officers with white roadside crosses, holding that the crosses convey to a reasonable observer that the State of Utah is endorsing Christianity. The Tenth Circuit's opinion is one of the latest in a long line of "'religious display'" decisions that, because of this Court's nebulous Establishment Clause analyses, turn on little more than "judicial predilections." Because our jurisprudence has confounded the lower courts and rendered the constitutionality of displays of religious imagery on government property anyone's guess, I would grant certiorari.
The memorials in question, erected in 1998 by the Utah Highway Patrol Association (UHPA) [official website], consist of 14 12-foot-high cross memorials displaying the fallen troopers' name, rank, badge number and the official UPH symbol. The memorials were paid for with private funds, but most were placed on public land.

Also Monday, the court issued a per curiam opinion [text, PDF] in Cavazos v. Smith [docket; cert. petition, PDF], summarily reversing the US Court of Appeals for the Ninth Circuit. The court found that the appeals court, "substituted its judgment for that of a California jury on the question whether the prosecution's or the defense's expert witnesses more persuasively explained the cause of a death." Justice Ruth Bader Ginsburg dissented, joined by Justices Stephen Breyer and Sonia Sotomayor, calling the court's summary disposition, "a misuse of discretion."




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Tunisia issues warrant for Yasser Arafat widow
Jerry Votava on October 31, 2011 1:00 PM ET

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[JURIST] The Tunisia State News Agency (TAP) [official website] announced Monday that the Tunisian Justice Ministry has issued a warrant [TAP report] for Suha Arafat, the widow for former Palestinian leader Yasser Arafat [JURIST news archive]. The warrant was issued last week as "part of a corruption case related to ousted president Zine El Abidine Ben Ali and his relatives as well as several government officials." Ben Ali [BBC profile; JURIST news archive] left office [JURIST report] in January amid nationwide protests against his regime. Reports indicate [AP report] that the warrant was not for Arafat's arrest, but to bring her in for questioning as a potential witness or suspect linked with financial corruption surrounding the former president. Arafat denies having any relation to the case [TAP report].

Since leaving office, Ben Ali and his associates have been embroiled in legal controversy. In August, members of Ben Ali's family were convicted [JURIST report] of aiding the former president's flight from Tunisia following his ouster. In June, Ben Ali [JURIST report] and his nephew [JURIST report] were convicted in absentia on charges of financial corruption and were given sentences of 35 and 15 years respectively. In April, Ben Ali was charged [JURIST report] with 18 offenses related to the use of force against protesters during the Tunisian revolution. In January, an arrest warrant for Ben Ali, his wife and other family members was issued [JURIST report] for illegal money transfers and the incitement of armed violence.




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ICTY sentences Seselj to 18 months for contempt of court
Jamie Davis on October 31, 2011 11:09 AM ET

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[JURIST] The International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] on Monday convicted [press release] former Serb nationalist and war crimes suspect Vojislav Seselj [case materials; JURIST news archive] of contempt and sentenced him [judgment, PDF] to 18 months in prison for revealing the names of protected witnesses in a book he authored [website]. The tribunal filed an indictment against Seselj in February 2010 for disclosing the names, occupations and places of residence of 11 protected witnesses in violation of the tribunal's order. Seselj admitted that he authored the book after protective orders were given in relation to 10 of the 11 witnesses, and a plea of not guilty was entered on his behalf after he refused to enter a plea. After a trial [case information sheet, PDF] that began [JURIST report] in February 2011 and concluded in June, the ICTY found that "the Accused knew he was disclosing information which identified ten of the witnesses and revealed that they could be involved in the Seselj case when he published the Book, and that he did so intentionally, with the knowledge that by doing so, he was violating decisions of the Seselj Trial Chamber." The tribunal emphasized the "deliberate way" in which Seselj violated the protective order and considered the adverse impact that his conduct may have upon witnesses trusting the Tribunal to guarantee to protect their identity. The tribunal also considered Selsej's lack of remorse and the widespread availability of the book in print and electronic forms when determining the scope of the disclosure.

The 18-month sentence imposed on Monday is the conclusion of the second of three contempt charges filed against Seselj. The first charge resulted in a 15-month sentence that he will serve concurrently with the 18-month sentence, and the third charge [JURIST reports] is currently underway. Seselj's war crimes trial began [JURIST report] in 2007 at the ICTY after he was charged [indictment, PDF] with three counts of crimes against humanity and six counts of war crimes and accused of establishing rogue paramilitary units affiliated with the ultranationalist Serbian Radical Party (SRS), which are believed to have massacred and otherwise persecuted Croats and other non-Serbs during the Balkan conflict. The trial was suspended [JURIST report] in 2009 because of concerns witnesses were being intimidated. The 2-1 ruling came in response to a motion filed by prosecutors in which they argued [court transcripts] there was "clear and convincing evidence that going forward will compromise the integrity and fairness of the proceedings." The trial resumed in 2010 after the delay, and was again ordered to continue in 2011 after Seselj sought to have the charges be dismissed [case sheet, PDF]. The trial is currently ongoing.




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Egypt court adjourns Mubarak trial until December
Jennie Ryan on October 31, 2011 11:03 AM ET

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[JURIST] The trial of ousted Egyptian leader Hosni Mubarak [Al Jazeera profile; JURIST news archive] was adjourned on Sunday and will not resume until December 28. Mubarak and his co-defendants were present in the courtroom for the short hearing at which the lengthy adjournment was announced. Mubarak is facing charges of complicity in the deaths of more than 800 protesters [JURIST report] during the pro-democracy demonstrations in Egypt [JURIST news archive] that resulted in Mubarak stepping down in February [JURIST report]. The adjournment will allow the court time to rule on a motion made by lawyers representing the victims' families to have the three judge panel in the case removed. The victims' families argue they were not given enough time [Al Jazeera report] to question Field Marshal Mohamed Hussein Tantawi [GlobalSecurity profile], head of the Supreme Council of the Armed Forces (SCAF) [NYT backgrounder] currently ruling Egypt. Tantawi, who served as Mubarak's defense minister for over 20 years, 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. A ruling on that motion is expected on November 3.

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 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. 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.




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Malaysia court strikes down ban on student political activity
Jennie Ryan on October 31, 2011 10:21 AM ET

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[JURIST] The Malaysian Court of Appeal [official website] on Monday ruled that a law prohibiting college students from taking part in political activities is unconstitutional. The suit, filed by four International Islamic University of Malaysia [official website] students in 2010, challenged the constitutionality of the 1971 Universities and University Colleges Act (UUCA) [text, PDF]. Under section 15 of the UUCA, students are not permitted to "be a member of, or ... in any manner associate with, any society, political party, trade union or any other organization, body or group of persons whatsoever." The court ruled that this prohibition violates the Malaysian Constitution [text, PDF], specifically the protection of the freedom of expression. The students' lawyer, Ashok Kandiah, called the ruling a "landmark decision." The International Islamic University of Malaysia has said it will appeal the ruling [AFP report] to the Federal Court of Malaysia [official website] the nation's highest court.

The constitutional challenge to the UUCA is not the only ongoing legal challenge to long standing Malaysian law. Early this month, Malaysia's government released 125 prisoners [JURIST report] who were being held under a decades-old security law that has been widely criticized by human rights and opposition groups. In an address to Parliament [official website], Prime Minister Najib Razak [official profile] announced the release of all individuals being held under the Restricted Residence Act of 1933 [text, PDF], the British colonial-era act that enables authorities to banish suspects to remote districts and force them to report regularly to police. In September, Razak announced that the government would repeal two strict security laws [JURIST report] that had allowed extended detention of suspects without trial. The government also said that it will review other laws dealing with freedom of the press, including the Restricted Residence Act.




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Bangladesh war crimes trial delayed
Maureen Cosgrove on October 30, 2011 3:52 PM ET

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[JURIST] The International Crimes Tribunal in Bangladesh (ICTB) [Facebook page] on Sunday delayed the start of its first war crimes trial. The ICTB, a special court established to try individuals suspected of war crimes in relation to the 1971 Bangladesh Liberation War [GlobalSecurity backgrounder] against Pakistan, was slated to hear arguments in the case of Delwar Hossain Sayedee, leader of Jamaat e Islami (JI) [GlobalSecurity backgrounder], on Sunday. Sayedee's lawyer has asked the tribunal to review the charges against his client. The tribunal accepted 20 of 31 charges [Al Jazeera report] including allegations of aiding Pakistani soldiers, murder, torching villages, rape, looting and forcibly converting Hindus to Islam. Sayedee has denied the charges. The Jamaat-e-Islami party, which openly campaigned against breaking away [JURIST report] from Pakistan during the war, has accused the tribunal of targeting political opponents. The trial is scheduled to resume on November 20.

In July, Bangladesh prosecutors filed the underlying war crime charges [JURIST report] in the ICTB against Sayedee. Earlier that month, Human Rights Watch (HRW) [advocacy website] praised recent reforms [press release] to the ICTB but urged it to do more to ensure fair trials, including allowing an accused to question the impartiality of the tribunal, which the law currently prohibits. In July 2010, the ICTB issued four arrest warrants [JURIST report] for the leaders of Jamaat e Islami, including Sayedee, for alleged crimes committed during the Liberation War. Bangladesh established the tribunal in March 2010 [JURIST report] to address charges of war crimes [Guardian report] and crimes against humanity.




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UN, Arab League denounce Syria violence
Maureen Cosgrove on October 30, 2011 2:11 PM ET

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[JURIST] The UN and the League of Arab States [official website, in Arabic] on Saturday released statements condemning violence in Syria after an estimated 40 people were killed in protest-related encounters this week. UN Secretary-General Ban-Ki Moon [official website] issued a statement [text] saying "the calls of the Syrian people for change must be answered with far-reaching reforms, not repression and violence." Ban also urged the Syrian government to end military operations against civilians and release political prisoners and detained protesters. The League of Arab States similarly condemned the killings [LAT report] of civilian protesters in Syria. The violence has erupted most recently in the Syrian cities of Homs and Hama.

Earlier this month, UN High Commissioner for Human Rights Navi Pillay [official profile] urged [statement] the international community to take steps to protect civilian lives in Syria [JURIST report], where more than 3,000 civilians have been killed since protests against the government began. This statement followed a report from a UN commission urging [statement] Syrian authorities to allow human rights experts to conduct an investigation [JURIST report] into allegations of human rights violations. In August, 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 UN Human Rights Council [official website] in April but was not permitted to enter the country.




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Kashmir amends tough detention law
Ashley Hileman on October 30, 2011 12:50 PM ET

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[JURIST] An anonymous official in India-controlled Kashmir reported Saturday that amendments to the Public Safety Act (PSA) [text] have been approved. Prior to amendment, the law treated youth 16 years and older as adults, allowing them to be arrested [AFP report]. Now, no one under the age of 18 will be detained for purposes of prosecution under the act. The PSA also allows the detention of individuals deemed to be threats to the state for up to two years before they can stand trial—a provision which remains in effect. However, detention periods for other crimes have been reduced as a part of the amendments. Changes to the law may have resulted from pressure on India's government and the local government in Kashmir by human rights groups, among others. In March, Amnesty International (AI) [advocacy website] reported that the PSA was being used to detain hundreds of people [JURIST report] despite the absence of sufficient evidence for a trial. AI then called on the relevant governments to carry out an independent, impartial and comprehensive investigation into allegations of abuses against detainees and their families, including allegations of torture and other ill-treatment, denial of visits and medical care, making its findings public and holding those responsible to account.

Last month, under pressure from AI, Kashmir promised to take steps to identify [JURIST report] the thousands of bodies that were found in mass and single graves by the State Human Rights Commission (SHRC) [official website]. Kashmir's Chief Minister Omar Abdullah [personal website] announced 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 SHRC had also called for an investigation into the identities of the remains, but, according to AI, their calls have been ignored. An additional 574 bodies were found, but those were later identified by local residents. Kashmir has remained 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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ICC prosecutor has evidence against Gaddafi son for planning civilian attacks
Ashley Hileman on October 30, 2011 12:09 PM ET

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[JURIST] International Criminal Court (ICC) [official website] Chief Prosecutor Luis Moreno-Ocampo [official profile] said Sunday that he has evidence against Saif al-Islam Gaddafi for his role in planning attacks on Libyan civilians. According to Ocampo, Saif al-Islam, who remains on the run from authorities, hired mercenaries [Reuters report] to assist him in carrying out his plans to attack civilians that protested the rule of his father, Muammar Gaddafi [BBC obituary; JURIST news archive]. The "substantial evidence" against Saif al-Islam is mostly in the form of witness reports, and the court remains in indirect contact with him, where there has been talk of a possible surrender [JURIST reports]. The ICC had previously met with Libyan rebel leaders, who had allegedly captured Saif al-Islam [JURIST report], in August to discuss turning him over to authorities for the purposes of a prosecution. However, Saif was free by September, when he vowed to continue fighting [Telegraph report].

The ability of the ICC to negotiate a possible surrender of Saif al-Islam is a result of his desire to avoid the fate of his father, who was killed by opposition fighters [JURIST report] earlier this month. On Monday, Interim Libyan leader Mustafa Abdul-Jalil [official profile] ordered an investigation into Gaddafi's death. He said that the National Transition Council [official website] has formed a committee to investigate the circumstances surrounding Gaddafi's capture and death in his hometown of Sirte. Abdul-Jalil's statement came amid pressure [JURIST report] from the UN Office of the High Commissioner for Human Rights (OHCHR) [official website], rights groups including Amnesty International (AI) [advocacy website] and international governments for an official investigation. Cell phone videos [WARNING: graphic images] taken during Gaddafi's capture have surfaced depicting wounded and bloodied Gaddafi alive but enduring torment and beatings by his captors while being carried and placed into the back of a truck. An autopsy confirmed that Gaddafi died from a gun shot wound to the head [AP report], but Abdul-Jalil suggested Monday that Gaddafi may have been killed by his own supporters [AP report] to prevent him from implicating them in any crimes under his regime.




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Canada high court rules rights tribunal cannot award legal costs
Dan Taglioli on October 29, 2011 12:57 PM ET

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[JURIST] The Supreme Court of Canada Friday declared that the Canadian Human Rights Tribunal (CHRT) [official websites] does not have the power to award compensation for legal costs. The high court's 7-0 decision [judgment text] states that the language used in the relevant federal statute does not allow for the awarding of legal costs [Vancouver Sun report] in the same manner prescribed by most provincial and territorial statutes. The ruling by the Supreme Court concluded the case of Donna Mowat, a former Canadian Forces traffic technician who was awarded $4,000 by the CHRT for sexual discrimination by her superiors. She was also awarded $47,000 for her legal costs, which the Federal Court upheld, but sent back for review since Mowat initially had sought $196,000 following the six-week hearing. The federal appeals court, however, found the tribunal had no jurisdiction to award any legal costs, and the Supreme Court agreed:
The precise interpretive question before the Tribunal was whether the words ... which authorize the Tribunal to "compensate the victim for ... any expenses incurred by the victim as a result of the discriminatory practice" permit an award of legal costs. No reasonable interpretation of the relevant statutory provisions can support the view that the Tribunal may award legal costs to successful complainants. Faced with a difficult point of statutory interpretation and conflicting judicial authority, the Tribunal adopted a dictionary meaning of "expenses" and articulated what it considered to be a beneficial policy outcome rather than engaging in an interpretative process taking account of the text, context and purpose of the provisions in issue. A liberal and purposive interpretation [is required to evaluate human rights legislation, but such an interpretation] cannot supplant a textual and contextual analysis simply in order to give effect to a policy decision different from the one made by Parliament.
The decision has raised questions regarding its effect on victims of alleged rights abuses who may avoid mounting cases for fear of cost, particularly when the maximum payout for pain and suffering is capped at $20,000. Conversely, some argue human rights commissions by their very nature are designed to deal with cases more expeditiously than the courts and without the need for expensive legal representation. However many, including Mowat's pro boon attorney, have stated such cases are very complex and necessarily produce large legal fees, and now it will be up to Parliament to amend the federal act to protect successful claimants who are subsequently saddled with huge attorneys' fees.

The Supreme Court has made several important decisions in recent months. In July the court issued rulings [JURIST report] in two major tobacco products cases, relieving the Canadian government of liability for tobacco-related health problems and allowing the provinces to sue the tobacco industry for damages for tobacco-related health care costs. The court ruled [text; materials] unanimously in R. v. Imperial Tobacco Canada Ltd. that the federal government is not liable for any tobacco-related death or illness. In the same opinion the court ruled [materials] in Attorney General of Canada v. Her Majesty the Queen in Right of British Columbia that individual provinces are able to sue tobacco companies for damages to offset the cost of treating tobacco-related illnesses. In June the court declared that it would hear an appeal of convicted terrorist Mohammed Momin Khawaja [CBC backgrounder; JURIST news archive], granting an application for leave to appeal [judgment, PDF] filed by Khawaja challenging the life sentence imposed by the Ontario Court of Appeals [official website]. In March the court agreed to review a lower court order [JURIST report] requiring a Muslim woman to remove her niqab [BBC backgrounder] while testifying after the Court of Appeal for Ontario [official website] in October ruled [JURIST report] that a witness does not have to remove her veil unless the failure to do so will prevent the accused from receiving a fair trial, and should be determined on a case-by-case basis.




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China adopts new anti-terrorism legislation
Alexandra Malatesta on October 29, 2011 12:27 PM ET

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[JURIST] China passed new anti-terrorism legislation on Saturday that will amend current criminals laws by providing a definition of "acts of terror" and establish ways for security forces to deal with such acts. The law defines "terrorists" as "those who organize, plot and conduct terrorist acts as well as those who are members of terrorist groups," and terrorist acts as "those acts which are intended to induce public fear or to coerce state organs or international organizations by means of violence, sabotage, threats or other tactics." In an effort to unify enforcement [Reuters report], authorities will now have the power to publish lists of terror suspects and freeze their assets. The law was proposed last week [JURIST report] before the Standing Committee of China' National People's Congress (NPC) [official website] in order to amend China's criminal law that failed to define the terms "terrorist" and "terrorist organization," or to define what constitutes "terrorist acts." Chinese Vice Minister of Public Security Yang Huanning emphasized the danger of having no clear definitions [Xinhua report] in the current law, noting in his report to the NPC that "China is faced with the real threat of terrorist activities, and the struggle with terrorism is long-term, complicated and acute."

Other countries have also recently considered amending their anti-terrorism laws. In August, Philippine President Benigno Aquino III [official website] urged lawmakers to enhance a controversial anti-terror law [JURIST report] by removing provisions that deter authorities from using the law. The proposed change would reduce the $11,700-per-day fine imposed on police or military forces who wrongfully detain terror suspects, as well as removal of a provision requiring suspects to be alerted when they are placed under surveillance. The current law faces criticism from opponents who say its language is overly broad and that is has rarely been used. Also in August, Saudi Arabian officials proposed amendments [JURIST report] to a draft anti-terrorism law that would criminalize taking up arms against the king or crown prince. The Saudi Arabian draft law has been sharply criticized by Amnesty International (AI) [advocacy website] which alleges the proposed law conflicts with international human rights treatises.




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California marijuana advocates file suit against federal government
Dan Taglioli on October 29, 2011 12:08 PM ET

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[JURIST] Medical marijuana advocates Thursday filed suit [press release] in a California federal court seeking declaratory and injunctive relief against the federal government for its recent crackdown on marijuana dispensaries in the state. Americans for Safe Access (ASA) [advocacy website] petitioned [complaint, PDF] the US District Court for the Northern District of California [official website] to intervene in what the Oakland-based advocacy group claims is a coercive attempt by the federal government to hijack California's state lawmaking authority. The actions in question are part of a coordinated effort announced earlier this month [press release] by California's four US Attorneys, including indictments, civil forfeiture lawsuits against owners of property on which medical marijuana dispensaries operate and dozens of warning letters to other operators and landlords of marijuana stores and to local officials who might implement the state's decriminalization law. ASA's complaint acknowledges the federal government's right to enforce in the states "in an even-handed manner" federal criminal laws against marijuana, but cites the Tenth Amendment [Cornell LII backgrounder] as protecting California's sovereign right to decriminalize marijuana for medical use:
ASA does not challenge the congressional authority to enact laws criminalizing possession and/or control of marijuana ... Nor does ASA challenge the federal government's general authority to enforce its drug laws in the State of California. It is, rather, the government's tactics, and the unlawful assault on state sovereignty they represent, that form the gravamen of ASA's claim. Under the Tenth Amendment, the government may not commandeer the law-making functions of the State of its subdivisions directly or indirectly through the selective enforcement of its drug laws.
Essentially the suit accuses federal agencies of commandeering California's legislative function and interfering with local laws meant to distinguish between medical and non-medical use. ASA's lawsuit was brought on behalf of its 20,000 California members who are "directly and adversely affected" by the federal government's actions.

US courts have been forced to interpret medical marijuana statutes in recent years. Arizona Governor Jan Brewer (R) [official website] announced in June that the state is filing a federal lawsuit [JURIST report] seeking a declaratory judgment over the legality of the state's controversial medical marijuana law passed last November. In January 2010, the California Supreme Court [official website] overturned [JURIST report] a 2003 law limiting the amount of marijuana that may be possessed under the state's Medical Marijuana Program (MMP) [materials]. Earlier that month, New Jersey became the fourteenth US state [JURIST report] to legalize medical marijuana. In November 2009, voters in Maine approved [JURIST report] an expansion of the state's existing medical marijuana laws, making Maine the fifth state to allow dispensaries, following California, Colorado, Rhode Island and New Mexico. California's Fourth District Court of Appeal ruled in 2008 that the MMP is not in conflict with the Supremacy Clause [JURIST report] and does not violate the Controlled Substances Act (CSA) [text].




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FCC unveils changes to broadband rules
Michael Haggerson on October 28, 2011 3:50 PM ET

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[JURIST] The Federal Communications Commission (FCC) [official website] announced comprehensive changes on Thursday to its national communications subsidy program to make high-speed internet access available in rural areas [press release, PDF]. The Connect America Fund [official website; executive summary, PDF] will have an annual budget of USD $4.5 billion, and the FCC estimates that the program will create more than 500,000 jobs while providing high-speed Internet access to more than 7 million Americans. The FCC described the previous system, the Universal Services Fund [official website], as "broken." The new program also makes mobile broadband "an independent universal service objective for the first time in history" and reforms intercarrier compensation to eliminate hidden costs in bills. FCC chairman Julius Genachowski called this a "once-in-a-generation overhaul" [text, PDF]:
We are taking a system designed for the Alexander Graham Bell era of rotary telephones and modernizing it for the era of Steve Jobs and the Internet future he imagined. We are reaffirming for the digital age the fundamental American promise of opportunity for all. We are furthering our national goal of connecting the country to wired and wireless broadband. And we are helping put America on its proper 21stcentury footing, positioning us to lead the world in a fiercely competitive global digital economy. Infrastructure has always been a key pillar of American economic success, with telephone and other infrastructure connecting consumers and businesses, facilitating commerce, and unleashing innovation. Broadband is the indispensible infrastructure of our 21stcentury economy.
The commission argued that high-speed Internet has become a necessity and thus all Americans should have access to it. Over 80 percent of Fortune 500 companies only post job openings online and studies have shown that students with access to broadband at home graduate at a rate of 6 to 8 percent higher than children in homes without access to broadband.

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




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Court-martial begins for US Army soldier charged in Afghanistan civilian deaths
Sarah Posner on October 28, 2011 12:41 PM ET

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[JURIST] A court-martial began Friday for US Army Sergeant Calvin Gibbs, 26, charged with murdering civilians in Afghanistan as part of a rogue platoon that has attacked villagers in the Kandahar province. Gibbs' trial follows an 18-month investigation into crimes committed by US military personnel as part of the war in Afghanistan. Gibbs now faces three counts of premeditated murder [Reuters report], in addition to charges for cutting off the fingers, dismantling dead bodies and assaulting a soldier for notifying superiors of drug abuse within the unit. If convicted on all charges, Gibbs could face life in prison without the possibility of parole. Prosecutors have depicted Gibbs as the instigator of the atrocities against Afghan civilians by the 5th Stryker Brigade. Seven other soldiers faced charges for lesser offenses, but most of the others have agreed to plea deals. Pentagon officials have said that exposure of this misconduct has damaged the image of the US abroad.

In September, Private Andrew Holmes, 21, pleaded guilty [JURIST report] to murdering a teenage Afghan civilian that he knew was unarmed. Holmes was the second soldier to plead guilty 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. In May, US Army prosecutors charged a sixth soldier [JURIST report] for his involvement in a murder plot that led to the deaths of three Afghan civilians. Bram was the sixth soldier from the 5th Stryker Brigade to be charged in connection with the three Afghan deaths, which took place between January and May of last year in Afghanistan's Kandahar province.




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Federal judge asks SEC, Citigroup to defend settlement
Katherine Getty on October 28, 2011 12:26 PM ET

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[JURIST] A judge for the US District Court for the Southern District of New York [official website] on Friday ordered [text, PDF] the US Securities and Exchange Commission (SEC) [official website] and Citigroup [corporate website] to defend their recent settlement agreement [JURIST report]. The agreement concluded the dispute that charged Citigroup with having misled its investors about a $1 billion loan that defaulted. The result left investors to bear the burden while Citigroup reaped $160 million in profits from trading and fees. Judge Jed Rakoff directed both parties to answer nine questions pertaining to the $285 million settlement. One of Rakoff's principal issues is why the SEC imposed a $95 million penalty on Citigroup but imposed a $535 million penalty [PDF, settlement agreement] on Goldman Sachs in a July 2010 suit. The judge also found fault with the reasoning behind the settlement and asked the parties prepare to defend their reasoning:
How was the amount of the proposed judgment determined? In particular, what calculations went into the determination of the $95 million penalty? Why, for example, is the penalty in this case less than one-fifth of the $535 million penalty assessed in SEC v. Goldman Sachs & Co. Why should the Court impose a judgment in a case in which the S.E.C. alleges a serious securities fraud but the defendant neither admits nor denies wrongdoing?
The next hearing is scheduled for November 9 when both sides will be required to answer the questions set out in the order.

This is not the first time that Rakoff has questioned settlements between the SEC and major financial corporations. In February 2010 he accepted a settlement [agreement; JURIST report] agreement between the SEC and Bank of America after twice rejecting it [JURIST report; JURIST report] as unfair to investors. This is also not the first time the SEC has taken issue with Citigroup's dealings with investors. In July 2010 the two sides reached [JURIST report] a settlement in regards to the SEC's claim that Citigroup misled investors about it's exposure to sub-prime mortgage-related assets. That agreement penalized the company $75 million. It was also rejected in August 2010 when a federal judge demanded to know how it was reached and why the investors were forced to bear the majority of the cost, but not the majority of the executives. The settlement was approved [Reuters report] October 2010.




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Spain judge to face trial for illegal jailhouse wiretap order
Rebecca DiLeonardo on October 28, 2011 12:21 PM ET

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[JURIST] The Spanish Supreme Court [official website, in Spanish] announced Friday that Judge Baltasar Garzon [BBC profile; JURIST news archive] will stand trial on November 29 for ordering illegal wiretaps in jailhouses. Garzon was indicted [text, PDF, in Spanish; JURIST report] in April for ordering the placement of wiretaps in jailhouses to record conversations between inmates and their lawyers. Garzon gave the order as part of an investigation [AP report] into a network of businesses that allegedly gave money and gifts to members of Spain's Popular Party in exchange for government contracts. He believed that the visiting lawyers may have been acting as liaisons between inmates and others involved in the criminal network. The court found, however, that Garzon continued to record the privileged conversations even after he learned that the majority of them discussed defense strategies. The November 29 trial will be the first of two for Garzon, who in 2010 was charged [order, PDF, in Spanish; JURIST report] with abuse of power and suspended from his position. No date has been set for a trial on this charge.

In March, Garzon filed a petition [JURIST report] with the European Court of Human Rights (ECHR) [official website], challenging the 2010 charges of abuse of power. In that case, Garzon is charged with politically motivated corruption in his investigation of crimes committed under the Franco dictatorship [BBC backgrounder], in violation of the 1977 Amnesty Law, which affords amnesty for Franco-era crimes. The charges are based on Garzon's 2008 order [JURIST report] for certain government agencies, the Episcopal Conference, the University of Granada and the mayors of four cities to produce the names of people buried in mass graves, as well as the circumstances and dates of their burial. His petition follows the September 2010 decision of the Criminal Chamber of the Spanish Supreme Court, which unanimously confirmed [JURIST report] a lower court order that Garzon abused his power and must face trial. Garzon is widely known for using universal jurisdiction [AI backgrounder; JURIST news archive] extensively in the past to bring several high-profile rights cases, including those against Osama bin Laden and former Chilean dictator Augusto Pinochet.




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Federal judge approves $1.25 billion settlement for black farmers
Jaimie Cremeans on October 28, 2011 11:47 AM ET

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[JURIST] A judge for the US District Court for the District of Columbia [official website] gave final approval [opinion, PDF] Thursday to a $1.25 billion settlement for black farmers who were discriminated against by the US Department of Agriculture (USDA) [official website] in disbursement loans and other forms of relief. This is the second round of settlements given to farmers who were discriminated against over a decade ago. The plaintiffs in this case missed the filing date in October 1999, so they were not included in a settlement made that year. After Congress passed a bill [text] in 2008 waiving the statute of limitations to give these farmers another chance to pursue their claims, the National Black Farmers Association filed suit on behalf of 800 black farmers. Federal Judge Paul Friedman issued final approval of the settlement Thursday:
Today, because of a Congress that was willing to once again waive the statute of limitations and to appropriate $1.25 billion to help further redress the historic discrimination against African-American farmers, the Court is pleased to approve the settlement agreement proposed by the Moving Plaintiffs, and endorsed by the United States, a fair, reasonable, and adequate.
US Attorney General Eric Holder and Agriculture Secretary Tom Vilsack welcomed the settlement [press release] as an "important step to ensure some level of justice for black farmers and ranchers who faced discrimination when trying to obtain services from USDA."

The farmers faced many procedural challenges over the past 12 years in pursuing their cases before the settlement was finally approved by the Senate last November and signed into law [JURIST reports] by President Barack Obama. The settlement was reached [JURIST report] with the USDA in February 2010, but the Senate failed seven times [JURIST report] to fund it. In May 2008, then-president George W. Bush vetoed a bill [JURIST report] which would have allowed the farmers to file suit after missing the original filing deadline. A month later, Congress voted to override [JURIST report] this veto, and the bill passed.




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Trial postponed for former Croatia PM
Sarah Posner on October 28, 2011 11:37 AM ET

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[JURIST] The corruption trial of former Croatian prime minister Ivo Sanader was postponed Friday for health reasons. Sanader has suffered from coronary problems and is expected to undergo a medical examination [BBC report] in preparation for trial now scheduled to start next week. Sanader, who was elected to parliament after he stepped down from the prime minister position in 2009, stands accused of corruption, abuse of power and fraud for taking nearly €4 million from public firms and state institutions [JURIST report]. The former prime minister denies any wrongdoing. The trial in Zagreb is scheduled to start next Thursday, November 3.

This high profile corruption charge comes as Croatia comes close to EU membership, hoping to join in July 2013. Sanader was indicted in September for corruption. The country's Bureau for Combating Corruption and Organized Crime (USKOK) alleged Sanader received a pay-off [JURIST report] of more than 3.6 million kuna (nearly USD $695,000) from Austria's Hypo Alpe-Adria-Bank in exchange for the country entering into a loan agreement to receive 140 million Austrian Schillings (USD $14.7 million) in order to place the bank in the Croatian market. Sanader was extradited [JURIST report] to Croatia in July in order to face these charges after he was arrested in Austria last December. Sanader argued that it would be impossible to receive a fair trail in Croatia, but he dropped it after media speculation [JURIST report] suggested the appeal could harm EU Croatia's accession.




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European Parliament condemns jailing of Ukraine ex-PM Tymoshenko
Matthew Pomy on October 28, 2011 11:28 AM ET

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[JURIST] Ukrainian authorities should review the conviction of former prime minister Yulia Tymoshenko [JURIST news archive], says a resolution [text] passed Thursday by the European Parliament that called her imprisonment [press release] "a violation of human rights and an abuse of the judiciary designed to silence Ukraine's leading opposition politician." Failing to do so, they say, calls the Ukrainian government's commitment to "democracy and European values" into question and may jeopardize Ukrainian relations with the EU. Tymoshenko, who was the leader of both the 2004 Orange Revolution [CFR backgrounder] and the opposition party [party website, in Ukrainian], was convicted [JURIST report] of abuse of her power earlier this month and sentenced to seven years in prison. The court fined Tymoshenko USD $190 million and forbade her from holding political office for three years. The verdict brought harsh backlash from the international community that saw the process as purely political. Tymoshenko, who accused the court of being a "puppet" of the president, has vowed to appeal the decision.

Relations between the EU and Ukraine appeared to be strengthening [PR Newswire report] as Ukraine was setting itself up for potential EU membership. However, conflict arose earlier this month when Tymoshenko was officially convicted of abusing her power when she signed a gas agreement with Russia that was alleged to have violated Article 365 of the Criminal Code of Ukraine [text]. Tymoshenko has filed a complaint [JURIST report] with the European Court of Human Rights [official website] calling the allegations politically engineered and contrary to the European Convention of Human Rights (ECHR) [text, PDF]. Separate charges of abuse of power were combined [JURIST report] in February with other charges of corruption that claim Tymoshenko bribed Supreme Court judges. Earlier this week, prosecutors reopened another case [Reuters report] against Tymoshenko on charges of embezzlement.




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Guantanamo detainee files complaint against Lithuania in Europe rights court
Brandon Gatto on October 28, 2011 10:49 AM ET

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[JURIST] Lawyers for a Guantanamo Bay [JURIST news archive] detainee and alleged al Qaeda facilitator on Thursday filed a case against Lithuania in the European Court of Human Rights [official website] for torture and secret detention at a CIA-run location within the Baltic state. The claimant, Abu Zubaydah [BBC profile], is a Palestinian who was captured in Pakistan in 2002 and taken to multiple CIA black sites, where he claims he was the victim of various human rights violations. According to Zubaydah and supported by government intelligence reports, the prisoner was waterboarded approximately 83 times [CIA memo, PDF] while in Thailand. He was then flown from Morocco to a secret detention facility [JURIST news archive] in Lithuania in February 2005, where he was supposedly tortured once again. Despite two previous probes dropped by the Lithuanian government in January 2009, officials have stated that they will consider re-opening a criminal investigation in light of increasing pressure [press release] from human rights groups like Amnesty International [advocacy website]. Lithuania is the only European country to have admitted directly working with CIA officials to provide these secret detention facilities, but nothing else.

The Lithuanian probe is not the first time that Zubaydah has urged countries to examine the often controversial methods of the US rendition program. In December 2010, Zubaydah asked Polish prosecutors [JURIST report] to investigate his alleged abuse at a secret CIA prison in Poland, where he claims he was the victim of enhanced interrogation techniques. Likewise, in April 2007, the alleged al Qaeda loyalist denied ties to terrorism [transcript] and asked a US Combatant Status Review Tribunal [JURIST report] to investigate his claims of torture. Zubaydah was transferred to Guantanamo Bay [JURIST report] in September 2006 as one of 14 "high value" terror suspects [DNI profile], and has remained there since.




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Advocacy group, lawmakers urge Supreme Court to hear health care challenge
Hillary Stemple on October 28, 2011 10:27 AM ET

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[JURIST] The American Center for Legal Justice (ACLJ) [advocacy website] and 105 members of Congress filed an amicus brief [text, PDF] with the US Supreme Court [official website] Thursday urging the court to take up a Florida case challenging the Patient Protection and Affordable Care Act (PPACA) [HR 3590 text; JURIST backgrounder]. Last month, the US Department of Justice (DOJ) [official website] and a group of 26 states filed petitions with the Supreme Court [JURIST report] seeking a ruling on the constitutionality of PPACA. The petitions for certiorari filed by the DOJ and states [cert. petitions, PDF] seek review of a decision handed down by the US Court of Appeals for the Eleventh Circuit [official website] in August. The Eleventh Circuit found the PPACA individual health care mandate unconstitutional [JURIST report] but upheld the remainder of the law without the mandate. The ACLJ's brief argues that the Eleventh Circuit erred in finding the individual mandate severable from the remainder of the law. They argue that because the individual mandate is the essential component of the PPACA it cannot be severed from the rest of the act. The entire act, they maintain, should therefore be struck down as unconstitutional. The ACLJ states that the split between the circuits over the constitutionality of the law has created a "matter of national importance," making a grant of review appropriate at this time.

There are currently several health care appeals pending before the Supreme Court. On Tuesday, the US Chamber of Commerce [official website] filed an amicus brief [text, PDF] asking the Supreme Court to agree to resolve the deepening legal conflict [JURIST report] over the constitutionality of PPACA. In addition to the appeal of the Eleventh Circuit's decision, earlier this month both the state of Virginia and Liberty University appealed a ruling by the US Court of Appeals for the Fourth Circuit, which dismissed their challenges for lack of standing [JURIST reports]. The US Court of Appeals for the Sixth Circuit upheld the law in June, and that ruling was also appealed [JURIST reports] to the Supreme Court by the Thomas More Law Center [advocacy website]. The Supreme Court is likely to rule on the issue next summer.




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ICC in contact with Gaddafi son over possible surrender
Hillary Stemple on October 28, 2011 9:21 AM ET

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[JURIST] The chief prosecutor of the International Criminal Court (ICC) [official website], Luis Moreno-Ocampo [official profile], confirmed Friday that there has been informal contact with Saif al-Islam Gaddafi, son of former Libya leader Muammar Gaddafi [BBC obituary; JURIST news archive], discussing the possibility of his surrender to the court. Libya's National Transitional Council (NTC) [official website] reported earlier this week that Saif al-Islam and former intelligence chief Abdullah al-Senussi were attempting to leave Libya [JURIST report] in an effort to surrender themselves to the ICC, although the ICC was unable to confirm the report at that time. In June, the ICC issued arrest warrants [JURIST report] for Saif al-Islam and al-Senussi alleging they had committed crimes against humanity in connection with the Libya conflict [JURIST backgrounder]. Ocampo indicated that Saif al-Islam has been informed through intermediate channels that if he surrenders he will have the right to a trial [Reuters report], and he will be considered innocent until proven guilty. Ocampo also stated that the ICC was considering the possibility of intercepting a plane [BBC report] with Saif al-Islam on it, if the plane is in the airspace of a country that is a party to the ICC. According to Ocampo, mercenaries are offering to move Saif al-Islam to a country that is not a party to the Rome Statute [text, PDF]. Saif al-Islam's location is currently unknown, but he is believed to be in Niger. Reports have indicated that Saif al-Islam could seek refuge in Zimbabwe, which is not a signatory of the Rome Statute, if he chooses to avoid ICC prosecution.

On Sunday, Libyan transitional Prime Minister Mahmoud Jibril [official profile] declared the country's official liberation [JURIST report] from the regime of Gaddafi and set a schedule for establishing a new government. Jibril made the announcement in front of thousands of supporters celebrating in the city of Benghazi, the location of the NTC and where the first uprisings sparked the Libya conflict eight months ago. The declaration of liberation came three days after Gaddafi's capture and death [JURIST report] at the hands of opposition forces in his hometown of Sirte. The NTC has formed a committee to investigate the circumstances surrounding Gaddafi's death, after pressure [JURIST reports] from the UN Office of the High Commissioner for Human Rights (OHCHR) [official website], rights groups including Amnesty International (AI) [advocacy website] and international governments. An autopsy has confirmed that Gaddafi died from a gun shot wound to the head [AP report], but interim Libya leader Mustafa Abdul-Jalil [official profile] has suggested that Gaddafi may have been killed by his own supporters [AP report] to prevent him from implicating them in any crimes under his regime. Gaddafi's death marks the latest milestone in the Libya conflict, which began in February [JURIST report] as part of a wider protest movement, commonly referred to as the "Arab Spring," that had spread throughout the Middle East and North Africa.




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Women launch new discrimination claim against Wal-Mart
John Paul Putney on October 28, 2011 8:37 AM ET

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[JURIST] Lawyers representing women who claimed discrimination by Wal-Mart [corporate website] filed an amended lawsuit [complaint, PDF] Thursday narrowing their claims to California stores of the retail giant. The lawsuit, filed in the US District Court for the Northern District of California [official website], alleges discriminatory practices against more than 90,000 women regarding pay and job promotion. The suit is expected to be the first of many cases against the retailer [Bloomberg report] broken down by state and region. Lawyers for Wal-Mart indicated the new suit relies on the same theories expressly rejected [Reuters report] by the US Supreme Court [official website]. The new suit seeks back pay [San Francisco Chronicle report] for female employees of Wal-Mart in California between December 1998 and at least June 2004, as well as requiring nondiscriminatory pay and promotions criteria.

In August, a judge ordered [text, PDF] that a group of women seeking to recover damages from Wal-Mart must file their lawsuits by October 28 [JURIST report]. In June, the US Supreme Court ruled [opinion, PDF] in Wal-Mart v. Dukes [Cornell LII backgrounder] that the group who filed the original claim did not meet the requirements for class certification [JURIST report]. The original case was filed in 2001 by female Wal-Mart employees [class website] who contended that Wal-Mart's nationwide policies result in lower pay for women than men in comparable positions and longer waits for management promotions than men. Wal-Mart appealed to the Supreme Court in August 2010 after the US Court of Appeals for the Ninth Circuit upheld class certification [JURIST reports] in April of that year. A three-judge panel of the Ninth Circuit originally ruled against Wal-Mart's appeal of the class certification in February 2007, then issued a new opinion [text, PDF] in conjunction with its decision in December 2007. Wal-Mart appealed [JURIST report] to the Ninth Circuit in 2005, arguing that the six lead plaintiffs were not typical or common of the class. The certified class, which in 2001 was estimated to comprise more than 1.5 million women, includes all women employed by Wal-Mart nationwide at any time after December 26, 1998. It would have been the largest class action lawsuit in US history.




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Poland reopens investigation into Auschwitz death camp crimes
John Paul Putney on October 28, 2011 7:52 AM ET

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[JURIST] Poland's Institute of National Remembrance (INR) [official website], the body charged with investigating Nazi and communist-era crimes, on Thursday announced a new probe into Nazi crimes aimed at tracking down living Nazi perpetrators. The investigation, opened by the branch in Krakow [AP report], follow investigations conducted during the Communist era that were concluded in the 1980s without making any indictments because Poland had difficulty questioning witnesses and perpetrators living abroad [BBC report]. As part of the probe, investigators plan to interview approximately 500 camp survivors [Telegraph report] for new information on the operations of the infamous death camp and who operated it. It was unclear whether the investigation would extend beyond Auschwitz, but the announcement was welcomed by Jewish groups [Reuters report].

Poland is not alone in its pursuit to remedy crimes committed during the Holocaust. German prosecutors announced earlier this month they intend to reopen hundreds of investigations [JURIST report] involving former Nazi death camp guards. In addition, Germany's recent trial and conviction [JURIST reports] of Nazi guard John Demjanjuk [NNDB profile; JURIST news archive] may have emboldened Poland. In September, the International Court of Justice (ICJ) [official website] at The Hague began hearing arguments [JURIST report] from Germany and Italy, which is seeking damages from Germany for crimes committed by Nazis during World War II.




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Gay rights group challenges Defense of Marriage Act
Michael Haggerson on October 27, 2011 3:49 PM ET

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[JURIST] Servicemembers Legal Defense Network (SLDN) [advocacy website] filed suit Thursday in the US District Court for the District of Massachusetts [official website] challenging [text, PDF; press release] the federal Defense of Marriage Act (DOMA) [text; JURIST news archive]. DOMA defines marriage for federal purposes as a legal union between one man and one woman. The suit alleges that DOMA unconstitutionally denies gay and lesbian service members equal protection under the law. The suit further alleges that "[t]here is no enumerated power in the Constitution that allows the federal government to define marriage in such a way as to deny Plaintiffs the benefits they seek, and the Tenth Amendment entrusts the regulation of marriage to the states." The plaintiffs are seeking:
[T]he same recognition, family support and benefits for their same-sex spouses that the military has provided and currently provides to opposite-sex spouses of current and former service members. These benefits include medical and dental benefits, basic housing allowances, travel and transportation allowances, family separation benefits, military ID cards, visitation rights in military hospitals, survivor benefits, and the right to be buried together in military cemeteries.
Major Shannon McLaughlin, one of the lead plaintiffs in the case, said that she had a "duty" to fight for equality [Advocate report]. Gay & Lesbian Advocates & Defenders (GLAD) [advocacy website] is expected to file a brief in support of SLDN's lawsuit.

In September Don't Ask, Don't Tell (DADT) [10 USC § 654; JURIST backgrounder] was officially repealed [JURIST report]. With the repeal of the law, the military can no longer prevent gays and lesbians from serving openly among its ranks. US President Barack Obama [official website] told gay rights activists earlier this month that he would continue to fight for the repeal [JURIST report] of DOMA, reinforcing that the DOJ is not defending its constitutionality. However, House Speaker John Boehner (R-OH) [official website] announced in March that he was launching a legal advisory group to defend [JURIST report] DOMA, stating "[t]he constitutionality of this law should be determined by the courts, not by the president unilaterally, and this action by the House will ensure the matter is addressed in a manner consistent with our Constitution." In February, congressional Democrats introduced the Respect for Marriage Act [text], which was intended to repeal DOMA [JURIST report], but it has not yet passed. A July 2010 ruling [JURIST report] by the US District Court for the District of Massachusetts found that Section 3 of DOMA violates both the Equal Protection Clause of the Fifth Amendment and State Sovereignty under the Tenth Amendment [text]. Currently DOMA allows other states to ignore those recognized same-sex marriages, and prevents same-sex couples from receiving federal benefits available to married couples.




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Egypt political corruption law amendments have potential for abuse: HRW
Ashley Hileman on October 27, 2011 3:39 PM ET

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[JURIST] Proposals for amendments to an Egyptian political corruption law were criticized by Human Rights Watch (HRW) [advocacy website] Wednesday for their potential for abuse [press release]. HRW reports that the amendments, proposed by the Egyptian Cabinet of Ministers [official website], would allow authorities to imprison anyone convicted of crimes involving "political corruption," which the organization alleges are vaguely defined, as well as deprive convicted persons of their rights to vote and run for office. As a result of this vague definition, HRW fears individuals will be convicted simply for association with certain political groups and not on the basis of actual criminal activity. While HRW recognizes the interest the new government has in keeping corrupt former officials from affecting the direction the country's government takes into the future, it maintains that these amendments are too arbitrary to be effective in this way. Instead, HRW recommends that Egypt refrain from basing judgments on the ability to hold political authority on past or present associations and require clear and convincing evidence that the "individual in question knowingly and actively furthered criminal practices of the organization." The proposals at issue seek to amend the country's 1952 "Law on Political Treachery," which would be renamed "The Political Corruption Law."

The country's upcoming election has resulted in a variety of legislative and court activity. Earlier this month, an Egyptian court overturned a ban [JURIST report] that prohibited presidential hopeful Ayman Nour [BBC profile] from forming a political party and also prohibited the formation of the Islamic-based political party Al-Gama'a al-Islamiya [party website]. The decision will allow political parties [Reuters report] previously banned because of their religious foundations to participate in the upcoming November parliamentary elections. The court found that Al-Gama'a al-Islamiya's party, "Construction and Development," should be allowed to participate in the elections because its founders consist of Muslims and non-Muslims and the party does not mandate the religion of its members. While the decision marks progress in Egypt's journey towards democratic rule, certain election prohibitions continue to restrict its progress. The Egyptian Supreme Council of the Armed Forces [NYT backgrounder] recently amended election rules to ban the use of religious slogans in campaigning [JURIST report]. The Supreme Council stated that "[e]lectoral campaigns based on the use of religious slogans or on racial or gender segregation are banned," adding that violators could be fined and face up to three months in jail.




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Brazil lawmakers approve truth commission
Michael Haggerson on October 27, 2011 3:07 PM ET

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[JURIST] Brazil's Chamber of Deputies [official website, in Portuguese] approved [press release, in Portuguese] a bill [materials, in Portuguese] on Wednesday that establishes a truth commission to investigate human rights abuses from 1946 to 1988. The bill must now be signed into law by Brazilian President Dilma Rousseff [BBC profile], a former guerrilla fighter. Almost 500 people were killed or abducted [BBC report] by the military-controlled government, and thousands more were tortured. The bill establishes a commission of seven individuals that have two years to investigate human rights abuses. The bill does not, however, overturn the 1979 Amnesty Law [text, PDF, in Portuguese] which shields military officials from prosecution for crimes committed during the country's 1964-1985 military dictatorship.

In August Amnesty International (AI) [advocacy website] urged Brazil to repeal its amnesty law [JURIST report]. In December the Inter-American Court of Human Rights (IACHR) [official website, in Spanish] ruled that the amnesty law was invalid [JURIST report] because it was incompatible with the American Convention on Human Rights [text]. Other Latin American countries have also been working to revoke amnesty laws. On Thursday, Uruguay's legislature voted to repeal the 1986 amnesty law [JURIST report] which prevented investigations, adjudications and human rights prosecutions of military junta officials during their regime between 1973-1985. In March 2010, AI urged government officials in El Salvador to repeal a 1993 amnesty law that prevents any investigation [JURIST reports] into killings committed during the country's 12-year civil war [PBS backgrounder], including the killing of respected Catholic Archbishop Oscar Romero [BBC backgrounder, JURIST news archive]. In 2005, Argentina's Supreme Court struck down similar amnesty laws [JURIST report] adopted in the 1980s to protect potential defendants, prompting the government to reopen hundreds of human rights cases.




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Argentina ex-military officers sentenced to life for crimes against humanity
Ashley Hileman on October 27, 2011 2:58 PM ET

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[JURIST] An Argentine court on Wednesday sentenced 12 former military and police officers to life in prison for crimes against humanity. The defendants were charged and convicted [La Nacion report, in Spanish] of various crimes that took place in the Escuela de Mecanica de la Armada (ESMA), which was used by the former military dictatorship as a torture chamber. Argentina's military junta used the location throughout the dictatorship's 1976-1983 "Dirty War" [GlobalSecurity backgrounder; JURIST news archive], during which more than 13,000 people were killed. Alfredo Astiz, nicknamed "the Angel of Death" was one of the officers that received a life sentence [AP report]. Astiz is a former navy spy for the dictatorship who was convicted of the murder of two French nuns, a journalist and three founders of a human rights group. Four additional defendants were also convicted, with their sentences ranging from 18 to 25 years in prison.

The ability of the court to sentence former officials is the result of a 2005 Argentina Supreme Court [official website, in Spanish] ruling that denied amnesty to military figures [JURIST report] who committed crimes during the military dictatorship. Argentina is not alone in its decision to allow these types of prosecutions. On Thursday, Uruguay's legislature voted to repeal the 1986 amnesty law [JURIST report] which prevented investigations, adjudications and human rights prosecutions of military junta officials during their regime between 1973-1985. Proponents of the law's revocation argue that the amnesty law violates the international human rights principles and treaties signed and ratified by Uruguay. In addition, they claim it is in violation of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the American Convention of Human Rights and the Inter-American Convention to Prevent and Punish Torture. Rights groups have also urged Brazil and El Salvador [JURIST reports] to revoke their amnesty laws.




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Rights group urges ICC to expand Kenya investigation
Matthew Pomy on October 27, 2011 12:43 PM ET

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[JURIST] The International Criminal Court [official website] should expand its investigation [press release] into the disappearances and killings of more than 1,000 people leading up to Kenya's 2007 election [JURIST news archive], Human Rights Watch (HRW) [advocacy website] said Thursday. The 48-page report [text, PDF], "'Hold Your Heart': Waiting for Justice in Kenya's Mt. Elgon Region," claims that, because the Kenyan government is not adequately investigating these crimes, the ICC should expand its current investigation [ICC materials] in hopes of bringing justice and closure to the victims' families. The ICC is already investigating post-election violence and is looking into six high ranking officials dubbed the "Ocampo Six." The first round of confirmation of charges hearings is coming to a close [Nairobi Star report] with the next round to begin soon. However, HRW claims this is not enough and recommends [text] that the court:
Analyze whether crimes falling within the ICC's jurisdiction were committed in Mt. Elgon and consider opening additional investigations in the Kenya situation currently before the ICC to bring to account persons most responsible for these crimes. The Office of the Prosecutor should consider in its analysis crimes committed by both the Sabaot Land Defence Force and Kenyan security forces.
The report calls on the ICC to hold the government and others accountable for the violence in the Mt. Elgon region leading up to the disputed election. It concludes that the victims should have access to the justice [text] they have been denied for three years.

The Ocampo Six are facing charges [JURIST report] for allegedly inciting violence during and after the December 2007 Kenyan elections. They include several high-ranking members of Kenya's government, the head of operations at Kass FM [official website] in Nairobi and the son of Kenya's first president, Jomo Kenyatta [Africa Within backgrounder]. Three of the men are members of the Orange Democratic Movement (ODM) [party website] and the other three are members of the opposing Party for National Unity (PNU). The ICC summoned the suspects [JURIST report] after determining they would not be charged in Kenya for the alleged crimes. In April, Kenya requested that the ICC dismiss the case [JURIST report], arguing that the government is capable of prosecuting the six men domestically. Lawyers for the Ocampo Six called for the timely release of evidence [JURIST report] against their clients that month as well.




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International court presidents stress rule of law in annual reports to UN
Dan Taglioli on October 27, 2011 12:16 PM ET

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[JURIST] The presidents of the International Court of Justice (ICJ) and the International Criminal Court (ICC) [official websites] on Wednesday presented their respective annual reports [UN press release; ICJ & ICC reports, PDFs] to the UN General Assembly [official website], stressing the increasing importance of the courts and need for the rule of international law as nations experience ever-growing globalization and the legal questions it raises. ICC President Sang-Hyun Song [official profile] said that each time a nation joins that tribunal's founding Rome Statute another brick is added to the wall that will protect future generations from "terrible atrocities" like the mass murders and human rights violations the court investigates. "In these times of unprecedented interconnection between States and peoples," said ICJ President Hisashi Owada [official profile], it is his "sincere belief that a firm reliance on international law must underpin any and all future developments on the global stage." Song and Owada each implored the General Assembly delegates to honor the courts' jurisdictions, relying on international law to resolve disputes between states and to suppress the gravest crimes against humanity. The presidents also addressed the issue of ever increasing global expectations for the courts, appealing to all states to support the courts with increased resources to continue work. Some delegates, such as the representative of Sudan, criticized the courts as having diverted from their intended purpose, such as the Rome Statute's linking of a political body like the UN Security Council [official website] to the ICC, which Sudan's delegate claimed violates the principle of separation of powers and creates a dangerous politicization of international justice. However, the presidents and several delegates noted that courts' dockets are growing increasingly larger and their geographically diverse caseloads speak to the courts' universal natures and to a growing confidence in their decisions.

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 week four candidates were named [JURIST report] as potential successors to ICC Chief Prosecutor Luis Moreno-Ocampo [official profile] when his nine-year term expires next year. This month Moreno-Ocampo visited the Ivory Coast in response to allegations of war crimes committed during post-election violence in the country last November, and the prosecutor subsequently singled out individuals [JURIST reports] for the ICC to investigate. In June Moreno-Ocampo made worldwide headlines by presenting to the ICC sufficient evidence to procure arrest warrants [JURIST report] for deposed Libyan leader Mummar Gaddafi [BBC profile; JURIST news archive] and two of his high-ranking officials, including Gaddafi's son. Last month the ICC 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. In August the ICC concludde 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 Office of the Prosecutor is looking at situations in Afghanistan, Colombia, Georgia, Guinea, Honduras, Nigeria and South Korea.




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Uruguay legislature repeals amnesty law
Dan Taglioli on October 27, 2011 10:49 AM ET

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[JURIST] The Uruguayan House of Representatives [official website, in Spanish] voted 50-40 Thursday to revoke a 25-year-old amnesty law [press release, in Spanish], which prevented investigations, adjudications and human rights prosecutions of military junta officials during their regime between 1973-1985. The 1986 expiry law was passed after Uruguay returned to democratic rule, shielding police and military personnel from prosecution for torture, killings, enforced disappearances and other serious human rights violations committed during the period of authoritarian rule. Amnesty International (AI) [advocacy website] and other opponents of the amnesty law have repeatedly called for repeal, arguing that the law violates the international human rights principles and treaties [press release] signed and ratified by Uruguay, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the American Convention of Human Rights and the Inter-American Convention to Prevent and Punish Torture. Guadalupe Marengo, AI's Deputy Director of Americas Programme, said of the newly passed legislation:
With the approval of this new law, Uruguay's Congress has taken an historical step forward in the fight against impunity for past crimes. ... Today's decision by Congress brings Uruguay in line with its obligations under international law and implements part of the ruling made by the Inter-American Court of Human Rights (IACHR). All perpetrators of past crimes against humanity should now be brought to justice.
The Amnesty Law has been ruled unconstitutional by Uruguay's Supreme Court, but until now survived numerous challenges in Congress. The new legislation was approved [JURIST report] Tuesday by the Senate and will now go to President Jose Mujica [official website, in Spanish], himself a former left-wing militant and Tupamaro leader who was jailed during military rule, for approval. Mujica had previously argued against scrapping amnesty, pointing to referendum results, but has indicated that he will sign the new measure [BBC report] before November 1, after which the time limit for trying military-era human rights will expire.

In June Mujica announced [JURIST report] that 80 administrative acts under the amnesty law preventing investigations of crimes committed during the 1973-1985 dictatorship will be removed. This revocation only involved the executive branch's administrative acts, leaving it for the courts to decide how to proceed. In May the House of Representative failed to repeal the amnesty law due to criticism that the law will allow the prosecution of veterans of the war but not rebel guerrillas. A month earlier, the Senate voted to overturn [JURIST reports] the law by a vote of 16-15. In March the IACHR ruled [JURIST report] that Uruguay's government must bring to justice those responsible for the disappearance of a woman abducted by Uruguay government forces in 1976. In October of last year, the effort to overturn the law through a referendum [text, PDF, in Spanish] failed [JURIST report] when only 48 percent voted in support of such change.




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UN SG presses for rights accountability in Sri Lanka
John Paul Putney on October 27, 2011 9:37 AM ET

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[JURIST] UN Secretary-General Ban Ki-moon [official profile] reemphasized Wednesday the importance of accountability issues in Sri Lanka related to conflicts with the rebel Liberation Tigers of Tamil Eelam (LTTE) [JURIST news archive]. The comments came during a meeting with Mahinda Samarasinghe [UN News Centre report], the Special Envoy of the President of Sri Lanka on Human Rights, as part of the UN's ongoing dialogue with the Colombo government [VOA report]. The secretary-general also stressed "the importance of an inclusive national dialogue aimed at achieving genuine political reconciliation, as well as ongoing progress with regard to recovery and resettlement efforts in the north" where large numbers of internally displaced persons currently live.

Earlier this week, Australian Attorney-General Robert McClelland refused to allow a war crimes case against Sri Lankan President Mahinda Rajapaksa [official website] despite charges that were filed [JURIST reports] by an Australian citizen claiming that during the 2009 Sri Lankan civil war, civilian targets were intentionally bombed by military forces. The charges follow closely behind a call last week [JURIST report] from the International Commission of Jurists, Australian Section (ICJA) [advocacy website] for Australia to investigate a top ranking official in the Sri Lankan High Commission [official website] in Canberra for war crimes violations allegedly committed by the Sri Lankan Navy during clashes with the LTTE in 2009. Earlier this month, Samarasinghe, announced the Cabinet of Ministers has adopted the National Action Plan [JURIST report] for the Protection and Promotion of Human Rights. Last month, Ban sent a report to the UN Human Rights Council [official website] accusing Sri Lankan troops of killing tens of thousands of civilians [JURIST report] during the civil war. In April, a UN panel of experts on Sri Lanka found credible allegations of war crimes [JURIST report] committed during the country's war with the LTTE, warranting further investigation.




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Michigan, 4 other states seek Supreme Court ruling on Asian carp
John Paul Putney on October 27, 2011 8:46 AM ET

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[JURIST] Michigan Attorney General Bill Shuette [official profile], joined by four other states, on Wednesday asked [cert. petition, PDF] the US Supreme Court to require the US Army Corps of Engineers [official websites] to accelerate a study on ecological separation as well as installation of nets to stop the advancement of Asian carp [EPA backgrounder] toward Lake Michigan. The current study on how to keep the invasive Asian carp from crossing between the Great Lakes and the Mississippi river is expected to take five years [Detroit Free Press report]. Some experts have indicated the invasive species could consume enough plankton to disrupt the food chain, damaging the multi-billion dollar fishing industry [AP report]. Shuette explained [press release]: "We need to close the Asian carp superhighway, and do it now. Time is running out for the Great Lakes, and we can't afford to wait years before the federal government takes meaningful action." Shuette has also organized a national coalition of 17 attorneys general to advocate a Congressional legislative solution.

The appeal comes after the Seventh Circuit Court of Appeals ruled against [JURIST report] the five states efforts to stop Asian carp. The Supreme Court has denied certiorari [AP report] on the issue three times as of April 2010. In December 2009, the state of Michigan filed a lawsuit [JURIST report] in the Supreme Court against the state of Illinois seeking to close the two waterways, as the court has original jurisdiction in disputes between the states. All three times, the court denied certiorari without comment on the dispute. Michigan reopened the longstanding controversy [backgrounder, PDF] over the diversion canal, created in the 1890s to keep Chicago's sewage from flowing into Lake Michigan. The court issued decrees over the canal in 1930, 1933, 1956, 1967 and 1980. The carp have been traveling up the Mississippi and Illinois rivers for years. Tests have showed that the carp may have gotten through an underwater electric barrier and may now be within six miles of Lake Michigan. The fish were originally imported to control algae in fisheries on the Mississippi River, but escaped during a 1990s flood.




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Indonesia court reduces jail term for radical cleric
Dan Taglioli on October 27, 2011 7:08 AM ET

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[JURIST] An Indonesian court announced Wednesday that it would reduce the 15-year prison sentence being served by a radical Indonesian cleric. A spokesman for the Jakarta High Court confirmed without elaboration that the chief judge reduced the jail term to nine years. Regarded as a spiritual leader of militant Islam in Indonesia, 73-year-old cleric Abu Bakar Bashir [JURIST news archive] is a vocal advocate of violent jihad and was jailed in June for backing a terrorist training camp in the Indonesian province of Aceh. The training camp prepared Islamic radicals to carry out attacks in Jakarta and was allegedly planning attacks modeled after the 2008 Mumbai terror attacks [JURIST news archive] and targeting high-profile members of the Indonesian government. Bashir was also accused of providing more than $62,000 to help fund the camp. The cleric was convicted of inciting terrorism in connection with the terrorist training camp in May after having pleaded not guilty [JURIST reports] the month before. He was not convicted of funding terrorist activities because there was not enough evidence to prove Bashir's money contributed to purchasing guns for use at the training camp. Bashir's lawyers have appealed the case to the Indonesian Supreme Court and have stated they are confident Bashir will eventually be cleared of terrorism charges and released from prison altogether.

Bashir's trial began in February [JURIST report] in the District Court of South Jakarta. He was suspected of links to al Qaeda [CFR backgrounder; JURIST news archive] and Jemaah Islamiyah (JI) [CFR backgrounder], a terrorist group with links to al Qaeda that has been implicated in a number of attacks in Indonesia, including the 2002 Bali nightclub bombing [JURIST news archive] that left more than 200 people dead. In 2006, the Indonesian Supreme Court overturned [JURIST report] Bashir's conviction on conspiracy charges connecting him with the bombings. He was released from prison [JURIST report] earlier in 2006 after spending 26 months in jail on different charges related to the bombings.




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Federal appeals court hears arguments in Padilla unlawful detention suit
Jamie Reese on October 27, 2011 6:30 AM ET

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[JURIST] The US Court of Appeals for the Fourth Circuit [official website] heard arguments Wednesday in an appeal by US citizen and convicted terrorist Jose Padilla [JURIST news archive] to reinstate his unlawful detention suit against several government officials. Padilla, represented by the American Civil Liberties Union (ACLU) [advocacy website], filed an action against former Secretary of Defense Donald Rumsfeld and other government officials, including former Secretary of Defense Robert Gates, under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics [opinion], claiming that his detention as an enemy combatant 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. Padilla's suit was dismissed [JURIST report] in February by the US District Court for the District of South Carolina [official website], which ruled that defendants had qualified immunity because the law did not expressly prohibit the torture of an American citizen classified as an enemy combatant. The appeal claims that the district court erred [JURIST report] in finding special factors precluding a Bivens remedy and finding the defendants entitled to qualified immunity. ACLU National Security Project litigation director Ben Wizner said [press release] Wednesday:
The defendants in this case seized Jose Padilla from a civilian jail and hid him away in a military brig precisely to keep the courts from interfering with the terrible things they were doing to him. By granting the defendants legal immunity for their cruel acts, the district court vindicated their deliberate efforts to circumvent the Constitution. ... If the law does not protect Jose Padilla—an American citizen arrested on American soil and tortured in an American prison—it protects no one.
Padilla was was arrested in 2002 at Chicago's O'Hare International Airport and subsequently detained as an enemy combatant. He was convicted on terrorism charges in 2007 and sentenced [JURIST reports] to 17 years in prison.

In the last several years there have been several suits brought against officials in the Bush administration. In August, the US Court of Appeals for the Seventh Circuit [official website] ruled [JURIST report] that a torture suit against Rumsfeld by two American citizens can proceed under the cause of action recognized in Bivens. Also in August, the US District Court for the District of Columbia [official website] ruled that Rumsfeld could be sued [JURIST report] by a former US military contractor who claims he was tortured while imprisoned in Iraq. In early 2011, the US Court of Appeals for the District of Columbia Circuit [official website] upheld the dismissal [JURIST report] of a torture suit against Rumsfeld brought by Afghan and Iraqi citizens alleging they were illegally detained and tortured. Also this year, the US Supreme Court ruled [opinion, PDF] that former US Attorney General John Ashcroft is immune from suit [JURIST report] and was entitled to absolute immunity because he did not clearly violate any established law.




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Four candidates named as potential successors to ICC prosecutor
Dan Taglioli on October 26, 2011 1:29 PM ET

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[JURIST] Four candidates were named Tuesday as potential successors to International Criminal Court (ICC) [official website] Chief Prosecutor Luis Moreno-Ocampo [official profile] when his nine-year term expires next year. The Search Committee for the position of the Prosecutor of the ICC [official website] submitted [Reuters report] its consensus report [report with annexes, PDF] to the Bureau of the Assembly of State Parties (ASP) with the shortlist of four names after interviewing eight candidates from a list of 52 potentials. Fatou Bensouda [official profile] of the Gambia, Deputy Prosecutor of the ICC since 2004, tops the list and has long been considered the favorite to succeed Moreno-Ocampo, as many of the ICC's cases currently focus on Africa. Additionally, Bensouda has the backing of the African Union [official website], the support of which has been critical to the ICC. The other African native on the list is Mohamed Chande Othman of Tanzania, currently Chief Justice of the Judiciary of Tanzania [official website]. Also on the list are Andrew Cayley [official profile] of the UK, International Co-Prosecutor at the Extraordinary Chambers in the Courts of Cambodia, and Robert Petit of Canada, Counsel, Crimes Against Humanity and War Crimes [official website] Section of Canada's Department of Justice. The consensus report notes:
In commending this shortlist, the Search Committee does not differentiate between the candidates in terms of suitability or make any preferential recommendation concerning any candidate. ... [T]he Search Committee considers its function to be that of a technical committee of the Bureau, to assist the Bureau and the ASP in their endeavours to secure the election of the Prosecutor by consensus [as required by ICC/ASP resolution]. In the light of the Search Committee's Report, it will properly be a matter for the Bureau and the ASP to consider how best to proceed to secure the formal nomination and election by consensus of the next Prosecutor.
ICC member states must now try to reach an informal consensus on one candidate, who then must receive an absolute majority of the formal vote via secret ballot at an ASP meeting in December in New York. The new prosecutor will take office in July 2012.

Amnesty International (AI) [advocacy website] has called for full transparency in the selection process and notes that the Rome Statute which established the ICC sets out clear criteria for electing a Prosecutor [press release], who "must be of high moral character and have extensive practical experience in the prosecution or trial of criminal cases." A successful candidate must also "have a proven history of performing professional duties impartially and independently" and have other relevant experience such as a background in prosecuting crimes under international law and expertise in specific issues, such as violence against women and children. As Prosecutor, Argentinian Moreno-Ocampo has been widely praised for his promotion of the work of the ICC. During his tenure he has launched seven formal investigations, begun three trials and issued arrest warrants for Sudanese president Omar al-Bashir and other military leaders wanted for human rights violations. However he has also been criticized due to the ICC's slow progress in achieving results, particularly in failing to bring a larger number of senior government officials to trial for various atrocities. This month Moreno-Ocampo visited the Ivory Coast in response to allegations of war crimes committed during post-election violence in the country last November, and the prosecutor subsequently singled out individuals [JURIST reports] for the ICC to investigate. In June Moreno-Ocampo made worldwide headlines by presenting to the ICC sufficient evidence to procure arrest warrants [JURIST report] for deposed Libyan leader Mummar Gaddafi [BBC profile; JURIST news archive] and two of his high-ranking officials, including Gaddafi's son.




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Gaddafi son, intelligence chief reportedly seeking surrender to ICC
Jerry Votava on October 26, 2011 12:58 PM ET

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[JURIST] Son of former Libyan leader Muammar Gaddafi [BBC obituary; JURIST news archive] Saif al-Islam Gaddafi and former intelligence chief Abdullah al-Senussi have reportedly attempted to leave Libya in an effort to surrender themselves to the International Criminal Court (ICC) [official website], according to the National Transitional Council (NTC) [official website]. The ICC has been unable to confirm [Al Arabiya report] these reports. Earlier in the summer, the ICC issued arrest warrants [JURIST report] for Saif al-Islam and al-Senussi for crimes against humanity. Saif al-Islam was reportedly injured during the activity that resulted in the capture and death [JURIST report] of his father last week outside of Sirte, but had later been seen [Reuters report] preparing to flee Libya with al-Senussi. This report comes as the Libya conflict [JURIST backgrounder] appears to be drawing to a close after the interim Libyan prime minister declared [JURIST report] the country's liberation following Gaddafi's death.

In June, ICC Chief Prosecutor Luis Moreno-Ocampo [official website] announced that his office was pursuing arrest warrants [JURIST report] against Gaddafi and the two others in his "inner circle." He said Saif al-Islam was acting as Gaddafi's "de facto Prime Minister" and called al-Sanussi Gaddafi's "right-hand man" and "executioner." At that time, Moreno-Ocampo said his office was almost prepared for trial, having collected quality testimony from some who have fled Libya. Saif al-Islam received a PhD from the London School of Economics in 2008 and is fluent in English. He had been seen by some as a potential reformer and successor to his father. In February, he announced that the Libyan government was set to undertake constitutional reforms [JURIST report] in response to protests.




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Ex-Goldman Sachs director charged with insider trading
Katherine Getty on October 26, 2011 12:39 PM ET

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[JURIST] Former Goldman Sachs [corporate website] Director Rajat Gupta was arrested [complaint, PDF] Wednesday on five counts of securities fraud and one count of conspiracy to commit securities fraud. The charges come in connection to his relationship with Raj Rajaratnam [JURIST news archive], co-founder of the Galleon Group, who was sentenced to 11 years [JURIST report] in federal prison for insider trading earlier this month. The US Securities and Exchange Commission [official website] unsealed the findings of its investigation which allege that Gupta disclosed material and nonpublic facts to Rajaratnam that he learned during board meetings. One of the allegations holds that Gupta informed Rajaratnam of Berkshire Hathaway Inc.'s investment into Goldman Sachs in September 2008. It also alleges that Gupta disclosed details of Goldman Sachs' financial situation in both the second and fourth quarter of 2008. Pree Bharara, the US Attorney in New York, asserts that Gupta failed to do his duty [press release, PDF]:
Rajat Gupta was entrusted by some of the premier institutions of American business to sit inside their boardrooms, among their executives and directors, and receive their confidential information so that he could give advice and counsel for the benefit of their shareholders. As alleged, he broke that trust and instead became the illegal eyes and ears in the boardroom for his friend and business associate, Raj Rajaratnam, who reaped enormous profits from Mr. Gupta's breach of duty.
The government might have a difficult time proving its case since the most crucial evidence against Gupta came out in Rajaratnam's trial in the form of phone calls between Rajaratnam and his employees. Those phone calls might not be admissible in court if the judge deems them hearsay.

Rajaratnam was convicted of 14 counts of insider trading [JURIST report] in May in the largest hedge fund insider trading case in US history. Several other defendants have pleaded guilty in connection with the case. Former hedge fund consultant Danielle Chiesi pleaded guilty [JURIST report] in January. Former IBM senior vice president Robert Moffat was sentenced to six months in prison in September and ordered him to pay a $50,000 fine for his role in the scheme after pleading guilty [JURIST reports] in March 2010. Former Intel Capital executive Rajiv Goel pleaded guilty [JURIST report] to insider trading charges in February 2010. Rajaratnam, Chiesi, Goel and Moffat were arrested in October 2009 and charged [complaint, PDF] along with two other individuals and two business entities with insider trading. The complaint alleged that the individuals provided Galleon Group and another hedge fund with material nonpublic information about several corporations upon which the funds traded, generating $25 million in illicit gain. Rajaratnam and Chiesi originally pleaded not guilty [JURIST report] in December 2009 after being indicted for insider trading.




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Uruguay senate votes to revoke amnesty law
Sung Un Kim on October 26, 2011 12:39 PM ET

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[JURIST] Uruguay's Senate [official website, in Spanish] voted [press release, in Spanish] 16-15 Tuesday to revoke the amnesty law of 1986, which prevents investigations, adjudications and human rights prosecutions of military junta officials during their regime between 1973-1985. The vote was supported by the Broad Front coalition (Frente Amplio) [party website, in Spanish], which is control of the House of Representatives [official website, in Spanish]. The House is scheduled to vote on this issue later Wednesday. Proponents of the law's revocation argue that the amnesty law violates the international human rights principles and treaties signed and ratified by Uruguay. In addition, they claim it is in violation of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the American Convention of Human Rights and the Inter-American Convention to Prevent and Punish Torture.

In June, Uruguayan President Jose Mujica [official website, in Spanish] announced [JURIST report] that 80 administrative acts under the amnesty law preventing investigations of crimes committed during the 1973-1985 dictatorship will be removed. This revocation only involved the executive branch's administrative acts, leaving it for the courts to decide how to proceed. In May, the House of Representative failed to partially repeal the amnesty law in a vote of 49-49 due to criticism that the law will allow the prosecution of veterans of the war but not rebel guerrillas. A month earlier, the Senate voted to overturn [JURIST reports] the law by a vote of 16-15. In March, the Inter-American Court of Human Rights (IACHR) [official website, in Spanish] ruled [JURIST report] that Uruguay's government must bring to justice those responsible for the disappearance of a woman abducted by Uruguay government forces in 1976. In October of last year, the effort to overturn the law through a referendum [text, PDF, in Spanish] failed [JURIST report] when only 48 percent voted in support of such change.




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Chamber of Commerce urges Supreme Court to resolve health care controversy
Max Slater on October 26, 2011 12:07 PM ET

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[JURIST] The US Chamber of Commerce [official website] filed an amicus brief [text, PDF] on Tuesday asking the Supreme Court [official website] to agree to resolve the deepening legal conflict over the constitutionality of the Patient Protection and Affordable Care Act (PPACA) [text; JURIST backgrounder]. The National Chamber Litigation Center (NCLC) [official website], the Chamber of Commerce's public policy law firm, wrote the brief, which does not address the PPACA's constitutionality, but outlines the negative consequences for businesses that will allegedly result from the law's implementation:
The PPACA imposes a myriad of costly obligations on the business community. ... Uncertainty over the future of the PPACA seriously undermines the ability of American businesses to plan for the future, and to make informed decisions concerning investment in growth and hiring.
The Chamber of Commerce argues that the uncertain constitutionality of the PPACA is hurting businesses' ability to make future financial decisions. The Supreme Court is likely to take up the issue next summer.

There are currently several health care appeals pending before the Supreme Court. Earlier this month, both the state of Virginia and Liberty University appealed a ruling by the US Court of Appeals for the Fourth Circuit, which dismissed their challenges for lack of standing [JURIST reports]. In September, the US Department of Justice [official website] appealed an August ruling by the US Court of Appeals for the Eleventh Circuit, which struck down the individual mandate [JURIST report] as unconstitutional, creating a circuit split. The US Court of Appeals for the Sixth Circuit had upheld the law in June, and that ruling was appealed [JURIST reports] to the Supreme Court by the Thomas More Law Center [advocacy website]. Also in August, the US Court of Appeals for the Third Circuit dismissed a lawsuit [JURIST report] brought by a physician organization for lack of standing.




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Brazil court recognizes same-sex marriage
Ashley Hileman on October 26, 2011 10:47 AM ET

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[JURIST] Brazil's High Court of Justice [official website, in Portuguese] on Tuesday upheld [press release, in Portuguese] the same-sex marriage [JURIST news archive] of two women. The court voted 4-1 in favor [AFP report] of recognizing same-sex marriages. The ruling was necessary following a number of disparate rulings by lower courts on petitions from couples seeking to have their civil unions recognized as full marriages. The union at issue had been denied full marriage rights by two lower courts, but those decisions were reversed by the high court, which took a step in this direction beginning in May, when it unanimously recognized rights [JURIST report] for partners in same-sex civil unions [JURIST news archive]. Through that ruling, gay couples in "stable relationships" were given the rights to community property, alimony, health insurance and tax benefits, adoption, and inheritance rights. While the state courts are not required to follow the decision rendered by the Supreme Court, it is hoped that the ruling will still work to discourage states within the country from blocking same-sex marriages.

Foreign and domestic courts and legislatures are increasingly addressing the issue of same-sex civil unions and marriages. In August, Chilean President Sebastian Pinera [official profile, in Spanish] proposed legislation [JURIST report] that would legalize same-sex civil unions. The bill would extend inheritance and social welfare rights to same-sex couples and unmarried heterosexual couples. Pinera insisted that marriage is between a man and a women but acknowledged that other forms of relationships are effective and that the state is obligated to recognize, protect and respect those partnerships. In April, Hungary added a prohibition against gay marriage [JURIST report] to its constitution. France upheld a same-sex marriage ban [JURIST report] in January. Same-sex marriage is recognized in jurisdictions in Mexico and the US and is recognized nationwide in Canada, Belgium, the Netherlands, Spain, Portugal, Sweden, Norway, Iceland and South Africa [JURIST reports].




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Gaddafi family to file ICC war crimes complaint against NATO
Jamie Davis on October 26, 2011 10:02 AM ET

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[JURIST] The family of former Libyan leader Muammar Gaddafi [BBC obituary] announced Wednesday that they plan to file a complaint against NATO with the International Criminal Court (ICC) [official websites] for its alleged role in Gaddafi's death [JURIST report]. Lawyer for the Gaddafi family, Marcel Ceccaldi, spoke to France-based radio station Europe1 [Europe1 report, in French] and indicated that the complaint stems from information suggesting that NATO helicopters were firing at Gaddafi's convoy. Ceccaldi also accused NATO of firing on the convoy as part of its operation to eliminate the former Libyan leader and criticized the display of Gaddafi's body in Misrata. The family intends to file the complaint in the ICC, which has jurisdiction over war crimes that have occurred in Libya since February 15, 2011 after the UN Security counsel unanimously voted [JURIST report] to refer Libya to the court. The ICC has authority under the Rome Statute [text] to prosecute any person responsible directly or indirectly for the commission of war crimes. Ceccaldi did not indicate when the complaint would be filed, but did indicate it would target both NATO governing officials and the leaders of member states.

Gaddafi's family is not alone in requesting that his killing be investigated as a possible war crime. The UN Office of the High Commissioner on Human Rights [official website] on Friday called for a full investigation [JURIST report] into the death. Libya has also taken its own steps to investigate the death. Interim Libyan leader Mustafa Abdul-Jalil said Monday that he has ordered an investigation [JURIST report] into the death of the former leader. He said that the National Transition Council (NTC) [official website] has formed a committee to investigate the circumstances surrounding Gaddafi's capture and death at the hands of opposition forces in his hometown of Sirte. Human rights groups including Amnesty International (AI) [advocacy website] and international governments have also called for an official investigation. In June, the ICC issued arrest warrants for Gaddafi, his son Saif al-Islam Gaddafi, the "de facto Prime Minister," and his brother-in-law Abdullah al-Sanussi [warrants, PDF], the head of intelligence, for alleged crimes against the people of Libya to quell the revolt that began in February. Saif al-Islam Gaddafi still remains at large [Reuters report].




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Federal judge blocks ultrasound provision of North Carolina abortion law
Ashley Hileman on October 26, 2011 9:34 AM ET

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[JURIST] A judge for the US District Court for the Middle District of North Carolina [official website] on Tuesday issued a preliminary injunction [text, PDF], blocking part of the state's abortion law that required a physician to perform an ultrasound and describe the images to the patient. The judge ruled [opinion, PDF] that the plaintiffs were likely to prevail on their First Amendment [text] challenge to certain provisions of the "Woman's Right to Know Act" [HB 854 materials] which were set to become effective Wednesday. Specifically, the plaintiffs challenged the act's "speech and display requirements," which mandate that a physician perform an ultrasound at least four hours before an abortion and then display the images to the patient while providing an explanation of the display. The plaintiffs' challenge is based on the grounds that they compel "unwilling speakers to deliver the state's message discouraging abortion." They further argue that as a result of this alleged violation, the requirements warrant analysis under a strict scrutiny standard. The defendants contend that strict scrutiny is not the correct standard, but, even if it applies, the requirements should be upheld as they further three compelling state interests: "protecting the psychological health of the patient, preventing coercive abortions, and expressing its preference for the life of the unborn." Judge Catherine Eagles rejected the defendants' arguments regarding the application of a different standard:
It is undisputed that the Act compels content-based speech by providers; it requires providers to orally and visually convey specified material about the fetus to their patients. The message is compelled regardless of a patient's individual circumstances or condition and regardless of the provider's medical opinion. The message is required even when the provider does not want to deliver the message and even when the patients affirmatively do not wish to see it or hear it. It is further undisputed that this implicates the First Amendment rights of providers such as the Plaintiffs.
The judge also held that, even if compelling state interests exist, the defendants failed to produce evidence that "alternatives more in proportion to the resulting burdens placed on speech would not suffice." Because the provisions at issue are able to be severed, the rest of the act will take effect Wednesday, as originally scheduled.

The plaintiffs sought an injunction after the state's House and Senate voted to override Governor Beverly Purdue's veto [JURIST reports] of the legislation. Another bill related to abortion passed by the North Carolina Legislature has also recently been challenged on First Amendment grounds. Last month, the American Civil Liberties Union of North Carolina Legal Foundation (ACLU-NCLF) [advocacy website] filed a federal lawsuit [JURIST report] challenging a North Carolina state law authorizing the use of pro-life license plates as a violation of the First Amendment. 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.




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Ninth Circuit allows Papua New Guineans to sue mining company for genocide
Julia Zebley on October 26, 2011 8:56 AM ET

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[JURIST] The US Court of Appeals for the Ninth Circuit [official website] on Tuesday reinstated [opinion, PDF] a lawsuit by Papua New Guinea [BBC backgrounder] citizens against mining company Rio Tinto [corporate website] on claims of genocide and war crimes. Allowing the suit under the Alien Tort Statute [text], the court ruled that it may proceed due to the Australian mining company's substantial operations in the US. Rejecting several attempts by the company to block the suit, it also ruled that a corporation can be held liable for genocide:
Corporations are recognized legal entities, yet, according to the [International Court of Justice], even amorphous "groups" may be guilty of genocide. The ICJ's analysis is instructive, in particular because the Supreme Court has noted that "[i]n interpreting our treaty obligations, we ... consider the views of the ICJ itself, 'giving respectful consideration to the interpretation of an international treaty rendered by an international court with jurisdiction to interpret the treaty.'" The ICJ concluded that genocide is a violation of international law whether committed by an individual, an amorphous group, or a state, consistent with all other sources of international law recognizing the universality of the prohibition of genocide.
The initial complaint alleges that Rio Tinto, while controlling the government of Papua New Guinea, sought to eliminate the residents of the primary island, Bougainville, after they took arms against the company in response to years of environmental and human rights abuses on the island. Due to Rio Tinto and the government treating the Bougainvilleans as a class, the court ruled that this was enough to constitute a protected class for the purposes of genocide. The complaint also alleged charges of institutionalized racism: "Rio Tinto oversaw this mass infliction of death and suffering as a part of its pattern of behavior on account of its worldwide view that members of non-white races were 'expendable.'" The ruling also states that both the governments of Papua New Guinea and the US fully support the suit. Rio Tinto will defend [Dow Jones report] against the charges when the suit goes to court. The US Supreme Court [official website] will hear oral arguments this term [JURIST report] in Kiobel v. Royal Dutch Petroleum to determine whether three oil companies are immune from US lawsuits under the Alien Tort Statute for torture and international law violations that took place overseas.

Rio Tinto operated a mine in Panguna, in Bougainville, since 1975, which provided 20 percent of the Papua New Guinea government's wealth. However, Bougainvillean people contend that not only did their citizenry not benefit significantly from these profits, but that Rio Tinto engaged in a number of environmental and human rights abuses. This reportedly included segregating white and local workers, polluting the Jaba River to the point where birth defects became prevalent and causing the extinction of an island animal. In response, the United Panguna Landowners Association [advocacy website] was formed, which eventually led to the Bougainville Revolutionary Army, who revolted against the Panguna mine in 1988. This incident evolved into the Bougainville Revolution [GlobalSecurity backgrounder], Papua New Guinea's nine-year civil war that took 20,000 lives. Although the war ended in 1997 with a peace accord, in 2001, a Papua New Guinea opposition leader signed an affidavit [SBS Dateline report transcript] claiming that Rio Tinto controlled the Papua New Guinea government during the war and provided substantial financial and military aid.




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Federal judge compels release of Secure Communities document
Julia Zebley on October 26, 2011 7:53 AM ET

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[JURIST] A judge for the US District Court for the Southern District of New York [official website] on Monday ordered [text, PDF] the federal government to release a memorandum concerning the Secure Communities Program [materials], a controversial immigration [JURIST news archive] program that forces the release of local law enforcement information on detainees to the federal government. The memorandum allegedly contains the reasoning behind forcing the program to be mandatory [AP report] for all states rather than opt-in. That decision, in October 2010, was spurred by more than 500 rights groups calling on President Barack Obama to dismantle the program [JURIST report] and several states ending their involvement in Secure Communities. Last week, the Warren Institute on Law and Social Policy [academic website] released a report [text, PDF] proclaiming that Secure Communities has often caught legal citizens in its net, that Latinos are disproportionately targeted and that non-violent offenders are often pursued despite the stated goals of the program. The US Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) [official websites] also announced last week that 396,906 illegal immigrants were deported in 2011 [JURIST report], the largest number in the agencies' history. The report indicated that more than half of the deportees were convicted criminals. The government must release the Secured Communities memorandum by November 1.

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. Last month, the US Department of Homeland Security Advisory Council (HSAC) [official website] approved a report responding to concerns with the program. The report stated 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. 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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Guantanamo lawyer challenges possibility of indefinite detention despite acquittal
Max Slater on October 25, 2011 7:42 PM ET

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[JURIST] The lawyer for suspected USS Cole [JURIST news archive] bomber Abd al-Rahim al-Nashiri [NYT profile; JURIST news archive] has filed a challenge [motion, PDF] to the method in which Guantanamo Bay [JURIST news archive] military tribunals are conducted. Navy Lt. Cmdr. Stephen Reyes asserts that the Pentagon will never release prisoners like al-Nashiri [AP report], thus rendering trials moot. In the motion, released to the public on Monday, Reyes suggests that the Pentagon warn officers who serve as jurors from the start if a prisoner is to be held indefinitely:
Each of the participants involved in this case, especially the Members of the Commission, need to know whether they are participating in a trial with real consequences of "merely a trial in name" where the political decision, already made and confirmed, will inform the result. If the latter, the Judge, the prosecutors, defense counsel and importantly the members may say, "I do not want to be a part of such a proceeding." And for some, their oaths may include participation in such a trial.
Al-Nashiri, scheduled to be arraigned on November 9 at Guantanamo, is being charged [materials] with murder, terrorism and conspiracy and faces the death penalty if convicted. Prosecutors have not yet responded to Reyes' motion.

Al-Nashiri, the alleged plotter of the USS Cole bombing, has been at the center of controversy for many years. In May, lawyers for al-Nashiri filed suit against Poland [JURIST report] over his supposed torture in a secret CIA prison [JURIST news archive] in the country. In 2007, al-Nashiri declared that his confession to orchestrating the USS Cole bombing was elicited under torture [JURIST report]. Al-Nashiri, along with fellow militant Jamal al-Badawi [FBI backgrounder], was sentenced to death [JURIST report] by a Yemeni court in 2004 for his role in the attack on the Cole. At least 17 sailors were killed [BBC report] and 40 were wounded in the USS Cole bombing in Aden, Yemen, on October 12, 2000.




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Rights group warns Egypt military may cover up protester killings
Brandon Gatto on October 25, 2011 3:39 PM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] warned on Tuesday that Egypt's Supreme Council of the Armed Forces [NYT backgrounder] may attempt to cover up [press release] various aspects of the killing of more than two dozen mostly Coptic Christian demonstrators on October 9. The protests, which began in Maspero when approximately 1,000 Christians attempted a sit-in outside of the state television building, quickly turned violent with the arrival of the Egyptian military, and ultimately resulted in the deaths of 27 people, including 21 Christians. In defense of its generals, Egypt's ruling military council has asserted that the protesters began both the confrontation and the ensuing violence, which marks the single deadliest incident since the February overthrow of president Hosni Mubarak [Al Jazeera profile]. Although the council has placed military prosecutors in charge of investigating the incident, HRW has urged Egyptian officials to transfer the investigation to civilian prosecutors. Deputy Middle East and North Africa director Joe Stork argues this is the only way to legitimize the Egyptian rule of law under the new democracy:
The military cannot investigate itself with any credibility. This had been an essentially peaceful protest until the military used excessive force and military vehicles ran over protesters. The only hope for justice for the victims is an independent civilian-led investigation that the army fully cooperates with and cannot control and that leads to the prosecution of those responsible.
As the demonstration moved toward the state television building, viewers were encouraged to aid the military in fending off the Christian protesters. Such encouragement from the state has led HRW to believe that an investigation into the Egypitan military's potential manipulation of the media is duly warranted. "The military has already has already tried to control the media narrative," added Stork, "and it should not be allowed to cover up what happened on October 9."

The Maspero Massacre marks yet another controversial incident regarding protests in Egypt even after the removal of its former president. In March, Arab and Egyptian human rights groups accused then-president Mubarak and police of murdering protesters during demonstrations, therein prompting the military council to instruct its top prosecutor to investigate the killings. Although the military council attempted to curb future demonstrations with a proposed law imposing prison sentences [JURIST report] and fines for those inciting protests, the legislation was widely condemned [press release] by international rights groups, namely HRW, as a violation of international law. In February, Amnesty International (AI) [advocacy website] accused Egypt's military council of torturing protester-detainees [JURIST report]. Relying on detainee accounts, AI stated that individuals were tortured "to intimidate protesters and to obtain information about plans for the protests." HRW echoed this sentiment at the time in claiming that the Egyptian military was improperly detaining protesters and allowing prisoner abuse [JURIST report]. Despite a warning to the Egyptian government from the UN High Commissioner for Human Rights, Navi Pillay [UN profile], in January to respect the rights of protesters [JURIST report], Egypt has endured criticism for the handling of its protests throughout the year.




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Human rights defenders still threatened: UN expert
Sarah Posner on October 25, 2011 2:31 PM ET

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[JURIST] Human rights defenders are still harassed, attacked and killed [press release] more than a decade after the international declaration adopted for their protection, a UN rights expert said Monday. UN Special Rapporteur Margaret Sekaggya presented her fourth report [text, PDF] on the right to defend human rights, which is aimed to increase understanding of the 1998 UN Declaration addressing the dangers that human rights defenders face. Sekaggya stressed that implementing the declaration, which sets out the rights and responsibilities crucial to the promotion and protection of human rights, is essential to allowing human rights defenders to carry out their work [UN News Centre report]. The report states:
although some progress has been made, many countries continue to pass laws and regulations that restrict the space for human rights activities and that are incompatible with international standards and with the Declaration in particular. Even where efforts are made to adopt laws that are in line with international standards, their ineffective implementation often remains a problem.
The aim of this report is both to make states aware of the rights provided for in the declaration and to ensure respect for the rights to which rights defenders are entitled.

Protection of human rights remains a central concern for the UN, with rights activists across the globe being subject to violence and arrest. In August, Chinese authorities in Beijing began the trial [JURIST report] of Wang Lihong, one of the dozens of human rights activists the government detained earlier this year as part of a crackdown on dissidents in the country. Nobel Peace Prize winner and human rights activist Liu Xiaobo [BBC profile; JURIST news archive] remains imprisoned in China despite international calls for his release. In July a coalition of human rights organizations issued a joint statement urging the Russian government to investigate the murder [JURIST report] of rights activist Natalia Estemirova [BBC obituary; JURIST news archive]. Estemirova, who was kidnapped in Grozny in July 2009 and shot to death, reported regularly on human rights abuses committed by the Chechen government, including extrajudicial killings, torture and enforced disappearances. In June, Zimbabwean human rights activist Farai Maguwu was arrested for allegedly supplying false information about Zimbabwe's controversial diamond mining practices to the international diamond control body the Kimberley Process (KP) [advocacy website].




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Australia AG refuses to allow Sri Lanka war crimes case
Jamie Reese on October 25, 2011 2:05 PM ET

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[JURIST] Australian Attorney-General Robert McClelland [official website] refused Tuesday to allow a war crimes case against Sri Lankan President Mahinda Rajapaksa [official website]. McClelland's announcement was in response to charges filed [JURIST report] by an Australian citizen claiming that during the 2009 Sri Lankan civil war, civilian targets were intentionally bombed by military forces. McClelland's consent is needed for such charges to proceed, but a statement issued from his office explained that pursuing such charges would be in breach of international laws [ABC News report], which provide immunity for heads of state. Specifically, the Foreign States Immunity Act 1985 [text] extends immunities to heads of state when visiting on diplomatic missions. The filed charges stem from Rajapaksa's upcoming visit to Perth, Australia, to participate in the Commonwealth Heads of Government Meeting (CHOGM) [official website] where prime ministers and presidents of member countries are set to discuss both local and global issues.

The charges follow closely behind a call last week [JURIST report] from the International Commission of Jurists, Australian Section (ICJA) [advocacy website] for Australia to investigate a top ranking official in the Sri Lankan High Commission [official website] in Canberra for war crimes violations allegedly committed by the Sri Lankan Navy during clashes with the Liberation Tigers of Tamil Eelam (LITE) [JURIST news archive] in 2009. Last month, UN Secretary General Ban Ki-Moon [official profile] sent a report [JURIST report] to the UN Human Rights Council (UNHRC) [official website] accusing Sri Lankan troops of killing tens of thousands of civilians during the civil war. In April, a UN panel of experts on Sri Lanka found credible allegations of war crimes [JURIST report] committed during the country's war with the Liberation Tigers of Tamil Eelam (LTTE) [JURIST news archive], warranting 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, which described the UN panel as an infringment of Sri Lanka's sovereignty.




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EU to enforce aircraft emissions law despite US opposition
Jennie Ryan on October 25, 2011 11:26 AM ET

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[JURIST] The European Union [official website] on Tuesday insisted that it will enforce its new cap-and-trade law [EU Directive 2008/101/EC, PDF] on airline emissions for flights traveling to and from Europe despite strong opposition from the US. The new legislation, taking effect January 1, 2012, will eventually require all airlines, including those of non-EU countries, to pay for their carbon dioxide emissions in an effort to encourage airlines to use cleaner fuels and to economize fuel use. Those who do not comply would face steep fines. On Monday, the US House of Representatives [official website] voted to shield [press release] US passenger and cargo planes from compliance with the EU law. The House Transportation and Infrastructure Committee Chairman John Mica [official profile] has criticized the law, calling it "an arbitrary and unjust violation of international law that disadvantages US air carriers, threatens US aviation jobs, and could close down direct travel from many central and western US airports to Europe" and a violation of international law and trade agreements. The change in the emissions law would greatly impact large US carriers, costing them an estimated $3 billion by 2020. Despite US opposition, EU Climate Action Commissioner Connie Hedegaard [official profile] said via Twitter that she expects the US to comply [Twitter] with the law as the EU has respectfully complied with US law.

Several US and Canadian airlines have challenged the legislation in the EU Court of Justice [official website] alleging that the carbon emission fees violate international law. The airlines argued that the directive violated the Chicago Convention, the Kyoto Protocol and the Open Skies Agreement [texts, PDF]. Earlier this month, the ECJ advocate general Juliane Kokott issued an opinion that the EU law does not violate international law [JURIST report] and noting that the EU is not a party to the Chicago Convention. The opinion of the advocate general is advisory and not binding on the ECJ, which will subsequently rule on the issue.




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Canada AG blocks Bush torture suit
Sarah Posner on October 25, 2011 11:17 AM ET

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[JURIST] The Attorney General for British Columbia [official website] on Tuesday blocked a lawsuit [CCIJ press release] filed by the Canadian Centre for International Justice (CCIJ) [advocacy website] against US president George W. Bush [JURIST news archive] on torture allegations. Lawyers from both CCIJ and the Center for Constitutional Rights (CCR) [advocacy website] responded with disappointment to the blocked lawsuit and order that the proceedings be stayed. Matt Eisenbrandt, legal director of the CCIJ, said, "[t]he legal basis for the case is exceptionally strong under the Criminal Code of Canada, and this private prosecution was initiated because the government of Canada refused to prosecute." The complaint [text, PDF] was filed [JURIST report] in Surrey Provincial Court on behalf of three former Guantanamo detainees and one man still being held in Guantanamo, who has been there for more than nine years. CCIJ filed the complaint prior to Bush's visit to Surrey for a speaking engagement with former US president Bill Clinton. Various human rights groups have called for an investigation of Bush's role in allegedly sanctioning torture of detainees.

Last week, Bush was in Surrey to attend the Surrey Regional Economic Summit [official website]. According to the CCIJ, the four men, three of whom have since been released without any formal charges ever being brought against them, endured "horrific and illegal" treatment while being detained at military bases in Afghanistan and Guantanamo Bay. CCIJ alleges that Bush violated the UN Convention Against Torture (CAT) [text]. The CCIJ and CCR initially filed an indictment against Bush [JURIST report] in September accusing Bush of sanctioning enforced disappearances, secret detention and a variety of acts of torture. Earlier in October, Human Rights Watch (HRW) and Amnesty International (AI) [advocacy websites] urged the Canadian government to investigate and arrest [JURIST report] Bush for his role in torture.




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Amnesty report: Syria government using hospitals to repress opposition
Rebecca DiLeonardo on October 25, 2011 10:43 AM ET

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[JURIST] The Syrian government has been utilizing state-run hospitals and their personnel to abuse wounded protesters, according to an Amnesty International (AI) [advocacy website] report [text, PDF; press release] published Tuesday. The report alleges that since the anti-government protests began, Syrian government officials have violated international human rights laws by intercepting ambulances, raiding hospitals and abusing hospital patients believed to be associated with the protests. Hospitals are required to report patients suspected of involvement in the protests to the authorities, and doctors who treat these patients have allegedly been subject to detention and torture. Additionally, AI alleges that doctors and nurses on the staff in some hospitals have participated in abuse and denial of care to suspected protesters. The report found that many Syrians are not comfortable seeking care at state hospitals, and have sought out alternative medical care:
Although prohibited by international human rights law and a serious breach of medical ethics, healthcare personnel have denied treatment to wounded patients on the basis of their real or presumed political affiliations. As well, security crackdowns and violent confrontations in the vicinity of healthcare facilities, and the occupation of facilities by armed forces and security personnel have prevented access to them by the wounded. People wounded in the unrest have become fearful of using state-run hospitals in case this leads to their being seen as government opponents and targeted for reprisals.
AI has called on the Syrian government to require equal treatment of patients in state hospitals, call off abusive behavior by hospital employees and government officials, and immediately cease the unlawful detention of Syrian doctors. The Syrian government did not immediately respond to the report.

Earlier this month, UN High Commissioner for Human Rights Navi Pillay [official profile] urged [statement] the international community to take steps to protect civilian lives in Syria [JURIST report], where more than 3,000 civilians have been killed since protests against the government began. This statement followed a report from a UN commission urging [statement] Syrian authorities to allow human rights experts to conduct an investigation [JURIST report] into allegations of human rights violations. In August, 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 UN Human Rights Council [official website] in April but was not permitted to enter the country.




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Libya government to implement moderate Sharia law
Alexandra Malatesta on October 25, 2011 10:36 AM ET

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[JURIST] Interim Libyan leader Mustafa Abdul-Jalil [official profile] said Tuesday that he intends to make Islamic Sharia law the basic source of legislation and reject any tenets in contradiction the teachings of Islam, but all in moderation to reflect Libya's political landscape, cultural norms and religious makeup. Though Abdul-Jalil says he intends to legalize polygamy [AP report], which was previously outlawed by former leader Muammar Gaddafi [BBC obituary; JURIST news archive], he does not intend to adopt the harsher punishments instituted by Iran and Saudi Arabia, such as cutting off limbs for thievery, beheading murderers, stoning adulterers and publicly flogging alcohol users. Critics fear that even the moderate implementation of Sharia law may stunt progressive legislation for women and families [Daily Mail report] and that insisting on the implementation of any Sharia law without allowing a vote on the issue flies in the face of Libya's long, violent struggle for democracy. Others celebrate the once-banned moderate Islamic party's presence in the upcoming free election.

This announcement follows closely on the heels of Human Rights Watch (HRW) [official website] urging Libya's National Transitional Council (NTC) [official website] to investigate the apparent "mass execution" [press release] of 53 Gaddafi supporters whose bodies were discovered [JURIST report] at an abandoned hotel in an area of Sirte that was under anti-Gaddafi control. The call for the NTC to investigate the discovery of the bodies comes days after Gaddafi was captured and killed and the Libyan prime minister declared the official liberation [JURIST reports] from Gaddafi's regime. Gaddafi's death and Libya's liberation come as the latest of milestones [JURIST timeline] in the Libya conflict [JURIST backgrounder], which began in February as a protest in opposition to the arrest of a prominent human rights activist. The ICC warned Libya [JURIST report] in May against covering up possible war crimes that have occurred during the conflict, and stated those involved in a cover-up will be held accountable. Prior to Gaddafi's death, which is currently under investigation [JURIST report], the ICC issued arrest warrants [JURIST report] for him and two of his high-ranking officials for their involvement in crimes against humanity.




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China considers new anti-terrorism legislation
Jennie Ryan on October 25, 2011 10:33 AM ET

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[JURIST] Proposed anti-terrorism legislation came before the Standing Committee of China' National People's Congress (NPC) [official website] on Tuesday that would provide specific legal definitions for terrorism and allow officials to more easily bring terror charges against suspects. Under China's current criminal law, those who organize, lead or actively participate in terrorist activities can receive a punishment of up to 10 years in prison, but the law fails to define the terms "terrorist" and "terrorist organization," or to define what constitutes "terrorist acts." Chinese Vice Minister of Public Security Yang Huanning emphasized the danger of having no clear definitions [Xinhua report] in the current law, noting in his report to the NPC that "China is faced with the real threat of terrorist activities, and the struggle with terrorism is long-term, complicated and acute." The proposed legislation would define terrorists as "those who organize, plot and conduct terrorist acts as well as those who are members of terrorist groups," and terrorist acts as "those acts which are intended to induce public fear or to coerce state organs or international organizations by means of violence, sabotage, threats or other tactics." The bill would also allow for the assets of suspected terrorists and terrorist organizations to be frozen and for the names of individuals and organizations to be published.

Other countries have also recently considered amending their anti-terrorism laws. In August, Philippine President Benigno Aquino III [official website] urged lawmakers to enhance a controversial anti-terror law [JURIST report] by removing provisions that deter authorities from using the law. The proposed change would reduce the $11,700-per-day fine imposed on police or military forces who wrongfully detain terror suspects, as well as removal of a provision requiring suspects to be alerted when they are placed under surveillance. The current law faces criticism from opponents who say its language is overly broad and that is has rarely been used. Also in August, Saudi Arabian officials proposed amendments [JURIST report] to a draft anti-terrorism law that would criminalize taking up arms against the king or crown prince. The Saudi Arabian draft law has been sharply criticized by Amnesty International (AI) [advocacy website] which alleges the proposed law conflicts with international human rights treatises.




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UK parliament votes down referendum on EU membership
Jaimie Cremeans on October 25, 2011 10:25 AM ET

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[JURIST] The UK Parliament [official website] voted 483-111 [press release] Monday against holding a national referendum on remaining a member of the European Union (EU) [official website]. The referendum would have put forward three options [press release] to the public for a vote: to remain in the EU, to leave the EU or to re-negotiate membership terms. Motion for debate on the topic was requested by member of parliament David Nuttall [official blog], who earlier this month explained why he thought the public should have a chance to decide [press release], noting much has changed since the last referendum on the issue:
Back in 1975 there was a referendum on whether or not we stayed in what was then referred to as 'The Common Market' the European Economic Community. Since then the nature of the organisation which the British people voted to remain part of has changed beyond all recognition. Firstly, the word 'Economic' was dropped and we became members of the European Community. Then, we became members of the European Union. All without any consultation of the British people. It is now time we all had our say!
Conservatives, led by Nuttall, went against the policies of conservative Prime Minister David Cameron [official website] in voting for the referendum. Multiple petitions from outside organizations, which collectively gained more than 100,000 signatures, also contributed to the committee's decision to consider a referendum. Citizens who wish to leave the EU have expressed several reasons, including lack of transparency in decision-making, concerns about the economic state of other members and desire to keep the UK's sovereignty [BBC reports].

Recently, the UK government and the European Court of Human Rights (ECHR) [official website]—a court to which all EU members subscribe—have faced increasing conflict. Last week, the UK's top judge, Lord Chief Justice of England and Wales Lord Igor Judge [official profile] said that the UK is not bound by the rulings of the ECHR [JURIST report]. In March, the UK Ministry of Justice [official website] announced the creation of a commission, suggested by Cameron, which will consider the implementation of a British Bill of Rights [statement, text]. Former UK Lord Chief Justice Lord Woolf has warned that a Bill of Rights would conflict [JURIST report] with the European Convention on Human Rights, which the UK has incorporated into its law. While the government has not stated an intention to withdraw from the European Convention on Human Rights, Woolf warned that continued adherence to the convention combined with the creation of Bill of Rights would create complications for judges in determining which to follow and further the existing conflict between the UK and the ECHR. Cameron suggested the creation of the commission in February after the UK House of Commons [official website] voted to reject an ECHR ruling [JURIST reports] and continue preventing prisoners from voting in British elections. The following month, the UK government took legal action to overturn [JURIST report] the ECHR ruling.




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UN Security Council resolution urges stricter anti-piracy measures
Alexandra Malatesta on October 25, 2011 9:57 AM ET

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[JURIST] The UN Security Council [official website] adopted a resolution [text] Monday urging member states to make piracy a crime and establish anti-piracy courts [webcast] because of the rise in maritime piracy crime off the coast of Somalia. The request was due in part to the recent conclusion [IMB report] by the Malaysia-based International Maritime Bureau's Piracy Reporting Center [official website] that despite increased patrol, Somali pirates are intensifying their attacks [AP report]. With Somali pirates responsible for 56 percent of the 352 attacks reported this year, the Security Council hopes to increase the number of courts and prisons in Somalia and other regional States in order to increase jurisdiction and accelerate enforcement efforts. The resolution also urges a collaborative effort among states [UN News Centre report] to share evidence and information regarding piracy suspects to further an anti-piracy international community:
[The Security Council] [c]alls upon states ... to cooperate in determining jurisdiction, and in the investigation and prosecution of all persons responsible for acts of piracy and armed robbery off the coast of Somalia, including anyone who incites or facilitates an act of piracy, consistent with applicable international law including human rights law; ... and [to] adopt a complete set of counter-piracy laws, including laws to prosecute those who illicitly finance, plan, organize, facilitate or profit from pirate attacks, with a view to ensuring the effective prosecution of suspected pirates and those associated with piracy attacks in Somalia, the post-conviction transfer of pirates prosecuted elsewhere to Somalia, and the imprisonment of convicted pirates in Somalia, as soon as possible.
The global economy has felt a billion dollar impact [Reuters report] as a result of at least 29 vessels being hijacked and requesting multi-million-dollar ransoms. The resolution also asks UN Secretary-General Ban Ki-moon to issue a progress report in two months regarding the prosecution of piracy suspects in Somalia.

International maritime piracy [JURIST news archive] reached an all-time high [JURIST report] early in the first quarter of 2011, according to a report [press release] released in April by the IMB. Earlier that month, the UN Security Council unanimously approved a resolution [JURIST report] to consider creating new laws, courts and prisons specialized to address the growing problem of piracy off the coast of Somalia. Last January, the IMB reported [JURIST report] that, to that point, 2009 marked the worst year of piracy since 2003, spiking near Somalian waters then as well. In July 2009, the IMB reported [JURIST report] that pirate attacks around the globe doubled in the first half of 2009. Few countries have been willing to prosecute suspected pirates. The few that have attempted to do so include Germany, Seychelles, the Netherlands, Mauritius, Yemen, Somalia and Spain [JURIST reports].




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Federal judge temporarily blocks Florida welfare drug testing law
Drew Singer on October 25, 2011 8:46 AM ET

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[JURIST] A judge for the US District Court for the Middle District of Florida [official website] on Monday temporarily blocked [order, PDF] a new Florida law [Executive Order 11-58, PDF] that had required welfare applicants to pass a drug test before receiving benefits. Judge Mary Scriven said that the law might violate applicants' Fourth Amendment [text] protection against unreasonable search and seizures. She concluded:
[I]mposing an injunction would serve the public interest by protecting [Temporary Assistance for Needy Families] TANF applicants from the harm caused by infringement of their constitutional right, a right here that once infringed cannot be restored. "Perhaps no greater public interest exists than protecting a citizen's rights under the constitution." Accordingly, the Court concludes that preliminarily enjoining what appears likely to be deemed to be an unconstitutional intrusion on the Fourth Amendment rights of TANF applicants serves the public interest and outweighs whatever minimal harm a preliminary injunction might visit upon the State.
A spokesperson for the state of Florida said that there will be an appeal of the ruling. More than 7,000 welfare applicants have passed the test since it began in July, with 32 people failing it. About 1,600 people have refused to take the test. Some policy experts argue [JURIST comment] that the drug testing policy is harmful for needy families.

The American Civil Liberties Union of Florida and the Florida Justice Institute [advocacy websites] filed the challenge [JURIST report] in September. The lawsuit was filed on behalf of Luis 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. 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. The complaint notes that the US 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.




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Alleged Iran assassin pleads not guilty in federal court
Drew Singer on October 25, 2011 7:35 AM ET

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[JURIST] Manssor Arbabsiar pleaded not guilty in a New York district court on Monday to charges stemming from his role in the alleged Iranian plot to assassinate Adel al-Jubeir [official profile], Saudi Arabia's ambassador to the US, on US soil. Arbabsiar, a US citizen, is alleged to have participated in a $1.5 million plot hire a Mexican drug cartel [AP report, video] to assassinate the Saudi ambassador using plastic explosives. The US Department of Justice [official website] announced earlier this month that it had foiled the plot [press release]. Arbabsiar, who was working as a used-car salesman in Texas, was arrested, and the other suspect, Gholam Shakuri, is still at-large and believed to be in Iran. Both men are Iranian nationals. It is illegal to kill or threaten to kill diplomatic ambassadors [JURIST report], and nations are required to either prosecute the offenders or extradite them so that charges can be brought against them.

Tensions between Saudi Arabia and Iran have existed for decades [CNN backgrounder]. There is both a political and religious divide between the countries, as Saudi Arabia is predominately Sunni and Iran is predominately Shia. The recent Arab Spring has only exacerbated tensions between the countries [CNN backgrounder] as Iran, at least initially, supported the revolutions because it saw Tunisia, Egypt and Bahrain as American allies. Saudi Arabia, on the other hand, wished to preserve the status quo in the Arab world. Many commentators suggest that the alleged assassination plot will only further escalate the tension between the countries [TIME report] and strengthen the weakening US-Saudi relationship.




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UN rights chief stresses rule of law as Tunisia conducts first free elections
Sung Un Kim on October 24, 2011 2:42 PM ET

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[JURIST] Tunisia conducted its first free elections Sunday, with UN High Commissioner for Human Rights Navi Pillay [official website] emphasizing the importance of adherence to the rule of law as the country moves forward. The election for the new constituent assembly was a success with a turnout rate of over 90 percent, according to the official results [official website, in Arabic]. The elected constituent assembly, consisting of 217 members, will be responsible for drafting a new constitution, choosing an interim government and setting the dates for parliamentary and presidential elections. As Pillay stressed in her statement [text] on Friday, the constituent assembly will face the difficult task of addressing the demands of freedom and human rights within the new constitution:
The principles of rule of law, of accountability, of non-discrimination and gender equality, the principles of freedom of expression and freedom of religion and belief—these rights are also laid down in the Universal Declaration and the desire to see them realized was a driving force behind the Tunisian revolution. These rights, and all the others laid down in this visionary document, and subsequently enshrined in a wide range of international treaties, must permeate any legal or policy response to the challenges Tunisia is facing. A successful rights-based revolution must be followed by a new rights-based social, legal, political and economic order.
Pillay further stated that the election is only the first step toward democracy and that the new legal framework has to ensure the "clear separation of powers between the executive, legislative and judicial branches."

The UN human rights office in Tunisia [official website], which was first opened in July, is currently assisting and offering advice as Tunisia continues to transform into an independent and open democratic system. The constituent assembly is considered to be the first of its kind in any North African or Middle Eastern country affected by the Arab Spring reform movement [UN News Centre backgrounder] after a 10-month preparation. Earlier this year, Tunisia was able to free itself [JURIST report] from the regime of its president, Zine al-Abidine Ben Ali, who fled Tunisia to Saudi Arabia in January during protests against his 23-year autocratic rule. Ben Ali was sentenced in absentia in July to 15 years in prison, following a 35-year sentence [JURIST reports] issued in June.




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Australia citizen files war crimes charges against Sri Lanka president
Jerry Votava on October 24, 2011 12:16 PM ET

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[JURIST] An Australian citizen has filed two counts of war crimes charges against Sri Lankan President Mahinda Rajapaksa [official website] for abuses that he allegedly witnessed in 2007 and 2008 as the Sri Lankan civil war drew to a close. Jegen Warran claims to have witnessed intentional attacks [ABC News report] by Sri Lankan military forces against civilian targets including a working hospital, killing patients and other civilians. The filing also alleges that the president ordered the unlawful detention of Tamil civilians. The case is now under review by Australian Attorney General Robert McClelland [official website], whose consent will be needed for the case to proceed. The filing comes as Rajapaksa is scheduled to arrive in Australia this week to participate in the Commonwealth Heads of Government Meeting (CHOGM) [official website], a biannual meeting of the prime ministers and presidents of its member countries. The meeting will take place in Perth, Australia, where leaders are set to discuss both local and global issues and to develop related policies and initiatives.

This filing follows closely behind a call last week [JURIST report] from the International Commission of Jurists, Australian Section (ICJA) [advocacy website] for Australia to investigate a top ranking official in the Sri Lankan High Commission [official website] in Canberra for war crimes violations allegedly committed by the Sri Lankan Navy during clashes with the Liberation Tigers of Tamil Eelam (LTTE) [JURIST news archive] in 2009. Last month, UN Secretary-General Ban Ki-Moon [official profile] sent a report [JURIST report] to the UN Human Rights Council (UNHRC) [official website] accusing Sri Lankan troops of killing tens of thousands of civilians during the civil war. In April, a UN panel of experts on Sri Lanka found credible allegations of war crimes [JURIST report] committed during the country's war with the LTTE, warranting 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, which described the UN panel as an infringement of Sri Lanka's sovereignty.




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HRW urges Libya to investigate bodies found in Sirte
Jamie Davis on October 24, 2011 11:13 AM ET

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[JURIST] Human Rights Watch (HRW) [official website] on Monday urged Libya's National Transitional Council (NTC) [official website] to investigate the apparent "mass execution" [press release] of 53 Muammar Gaddafi [BBC obituary; JURIST news archive] supporters whose bodies were discovered at an abandoned hotel in an area of Sirte that was under anti-Gaddafi control. HRW emergencies director Peter Bouckaert called on the NTC to immediately investigate and hold accountable those responsible for the killings. Witness reports to the HRW indicate that anti-Gaddafi supporters had been in control of the area in which the hotel was located since early October. Sirte residents, who were at the hotel when HRW arrived, said that they found the bodies two days prior. Bouckaert said, "[i]f the NTC fails to investigate this crime it will signal that those who fought against Gaddafi can do anything without fear of prosecution. ... This latest massacre seems part of a trend of killings, looting, and other abuses committed by armed anti-Gaddafi fighters who consider themselves above the law. ... It is imperative that the transitional authorities take action to rein in these groups." HRW noted that the International Criminal Court (ICC) [official website] has jurisdiction [JURIST report] to prosecute those responsible for war crimes committed in Libya after February 15 and can bring charges against those responsible for physically committing the crime, senior officials who give the orders and those in a position of authority who failed to stop the crimes or prosecute those responsible.

The call for the NTC to investigate the discovery of the bodies comes days after Gaddafi was captured and killed and the Libyan prime minister declared the official liberation [JURIST reports] from Gaddafi's regime. Gaddafi's death and Libya's liberation come as the latest of milestones [JURIST timeline] in the Libya conflict [JURIST backgrounder], which began in February as a protest in opposition to the arrest of a prominent human rights activist. The ICC warned Libya [JURIST report] in May against covering up possible war crimes that have occurred during the conflict, and stated those involved in a cover-up will be held accountable. Prior to Gaddafi's death, the ICC issued arrest warrants [JURIST report] for him and two of his high-ranking officials for their involvement in crimes against humanity.




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Italy war crimes expert Cassese dies at 74
Maureen Cosgrove on October 24, 2011 11:03 AM ET

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[JURIST] Antonio Cassese [JURIST news archive], a renowned Italian international war crimes expert and key figure in the establishment of two international criminal tribunals, died Saturday in Florence, Italy, at the age of 74. Cassese was the first president of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the first President [JURIST report] of the UN Special Tribunal for Lebanon (STL) [official websites]. In an expert capacity, Cassese was also involved in the Special Court for Sierra Leone (SCSL) [official website] as well as the International Commission of Inquiry on Darfur [commission report, PDF]. Upon learning of Cassesse's death, UN Secretary-General Ban Ki-Moon [official profile] praised [press release] Cassese's contributions to the international legal community:
Throughout his distinguished career Antonio Cassese made his exceptional professional skills available to the United Nations. ... In these and many other functions Antonio Cassese shaped the development of international criminal justice and made a major contribution to fighting impunity and bringing about an age of accountability. ... The United Nations will fondly remember Antonio Cassese as a giant of international law, as a loyal friend who was always there when the Organization needed his wise counsel and dedicated services, and mostly as an exceptionally charming and warm human being who courageously stood up for justice, for human rights and for humanity.
The STL described Cassese as a pioneer of modern international criminal law, while the ICTY portrayed the human rights activist as a visionary and passionate leader [press releases]. Cassese passed away after a long battle with cancer.

Cassese has been involved in international criminal proceedings as recently as August. Cassese, as president of the STL, had a large role in the trials of four men wanted for killing former prime minister Rafik Hariri [BBC profile; JURIST news archive] in 2005. He made a public plea [press release] in August, calling for the men to turn themselves in [JURIST report]. He also guaranteed a fair trial and adequate representation and pressed Lebanese citizens to allow the STL to hold the assassins accountable. In December 2010, Cassese rejected motions [JURIST report] to disqualify Lebanese judges for bias, holding that Lebanese General Jamil El-Sayed had failed to provide enough evidence that the judges were biased such that the mixed-composition panel would be dissolved.




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Khmer Rouge leader defense team files suit against Cambodia PM
Alexandra Malatesta on October 24, 2011 10:57 AM ET

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[JURIST] Defense lawyers for Nuon Chea [case materials, PDF], a former leader of Cambodia's Khmer Rouge regime [BBC backgrounder; JURIST news archive] filed a lawsuit Monday against Prime Minister Hun Sen [BBC backgrounder] for interfering with the UN-backed war crimes tribunal. Chea's lawyers accused the prime minister of criminally conspiring to block some of the defense witnesses from testifying [Reuters report] and consequently interfering with Chea's right to a fair trial. Chea, along with three other defendants, will go on trial next month [JURIST report] on charges of crimes against humanity, genocide, religious persecution, homicide and torture in the Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website]. The seven-year old tribunal is expected to spend about $150 million by the end of the year and has only issued one sentence since its creation. Former Judge Siegried Blunk recently resigned because of implications of a lack of impartiality [JURIST report] made by the Cambodian foreign minister.

Last week, UN Under-Secretary General for Legal Affairs Patricia O'Brien urged the Cambodian government to refrain from interfering [JURIST report] with the ECCC's work. In a meeting with Cambodia's Deputy Prime Minister Sok An to discuss recent developments at the tribunal, O'Brien expressed concern and reiterated the call to respect the integrity and independence of the tribunal. Last month, 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 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, Leng Thirith [case profiles, PDF], who served as minister for social affairs. All four have pleaded not guilty to charges including crimes against humanity, war crimes, genocide, religious persecution, homicide and torture.




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UN expert calls for gender equality in criminal justice systems
Jennie Ryan on October 24, 2011 10:33 AM ET

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[JURIST] The UN Special Rapporteur on the Independence of Judges and Lawyers [official website] Gabriela Knaul [profile] called Friday for integration of a gender perspective [report, PDF] into countries' criminal justice systems on. The annual report "addresses the need to consider and integrate a gender perspective in the criminal justice system as a fundamental step towards allowing equal access to justice for women and men and in respect of the role to be played by judges and lawyers." During the presentation of her report [press release] to the UN General Assembly [official website], Knaul stated that "[g]iven the historical and pervasive discrimination against women throughout the world, we have to look at how women are represented and treated in the criminal justice system." Knaul stressed the necessity of integrating gender perspective into judicial procedures to allow women's perspectives to challenge the "traditional notions of judging and judicial authority." The report includes a number of recommendations to states on how to improve gender equality in their criminal justice systems including identifying judicial regions most affected by gender-based discrimination, encouraging women to apply for high level criminal justice positions, and providing training geared on gender equality and women's rights.

Equality and women's rights continue to be an issue for much of the world. Earlier this month, the UN Special Rapporteur on Violence Against Women [official website] Rashida Manjoo [official profile] appeared in front of the General Assembly to urge states to fulfill their obligations to prevent violence against women [JURIST report]. Manjoo's presentation followed her August request for the US government to reevaluate its domestic violence policies [JURIST report]. Manjoo also released a report in June that said there is a continued prevalence of violence and discriminatory treatment of women in the US [JURIST report], with a heightened impact on poor, minority and immigrant women. In March, UN High Commissioner for Human Rights Navi Pillay [official profile] pressed [JURIST report] Tunisia and Egypt to ensure that women's rights receive constitutional protection and to include women in the dialogue to shape the future of their countries. Last year, Human Rights Watch (HRW) [official website] called on the Afghan government to protect the rights of women [JURIST report] during integration and reconciliation efforts conducted with the Taliban [GlobalSecurity backgrounder] and other militants. Earlier in 2010, India's upper house of parliament, the Rajya Sabha [official website], approved a bill [JURIST report] to ensure that one-third of seats in parliament are reserved for women.




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Libya leader orders investigation into Gaddafi death
Alexandra Malatesta on October 24, 2011 9:11 AM ET

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[JURIST] Interim Libyan leader Mustafa Abdul-Jalil [official profile] said Monday that he has ordered an investigation into the death of former leader Muammar Gaddafi [BBC obituary; JURIST news archive]. He said that the National Transition Council [official website] has formed a committee to investigate the circumstances surrounding Gaddafi's capture and death [JURIST report] last week at the hands of opposition forces in his hometown of Sirte and to determine what to do with the body. Abdul-Jalil's statement comes amid pressure [JURIST report] from the UN Office of the High Commissioner for Human Rights (OHCHR) [official website], rights groups including Amnesty International (AI) [advocacy website] and international governments for an official investigation. Cell phone videos [WARNING: graphic images] taken during Gaddafi's capture have surfaced depicting wounded and bloodied Gaddafi alive but enduring torment and beatings by his captors while being carried and placed into the back of a truck. An autopsy confirmed that Gaddafi died from a gun shot wound to the head [AP report], but Abdul-Jalil suggested Monday that Gaddafi may have been killed by his own supporters [AP report] to prevent him from implicating them in any crimes under his regime. Gaddafi's body has been on display [Reuters report: graphic content] since Friday in the city of Misrata, drawing large crowds of visitors wanting to see the body and take photos.

Libyan transitional leader Mahmoud Jibril [official profile] on Sunday declared the country's official liberation [JURIST report] from Gaddafi's regime and set a schedule for establishing a new government. Libyan civilians and NTC officials continue to celebrate the news of Gaddafi's death, and several world leaders have expressed relief and support for Libya. UN Secretary-General Ban Ki-Moon [official profile] said this week that Gaddafi's death marked "an historic transition" for the country and urged Libyans to stop fighting and promote peace [UN News Centre report]. Gaddafi's death marks the latest milestone in the Libya conflict [JURIST backgrounder], which began in February [JURIST report] as part of a wider protest movement, commonly referred to as the "Arab Spring," that had spread throughout the Middle East and North Africa.




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Bahrain court hears appeals of 20 convicted medics
Maureen Cosgrove on October 23, 2011 2:14 PM ET

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[JURIST] A Bahrain court on Sunday began hearing the appeals of 20 medical staff members convicted last month of participating in the country's pro-democracy protests against the ruling regime. The 13 doctors, one dentist, nurses and paramedics who were jailed for providing treatment to injured protesters all worked at the Salmaniya Medical Complex [official website] in Manama, which was stormed by security forces in March after they drove protesters out of the nearby Pearl Square—the focal point of protests inspired by uprisings that have swept the Arab world. Among other terrorism charges, the 20 were accused of having possession of an AK-47, Molotov cocktails and other weapons for the purposes of ousting the ruling regime, confiscating medical equipment, spreading lies, inciting hatred against the regime and violating various other laws and regulations with an aim to disturb public security. Earlier this month, Bahrain [JURIST news archive] granted retrials for the medics who were convicted and sentenced [JURIST reports] by the National Safety Court of Appeal to terms ranging from five to ten years imprisonment. Human rights groups are concerned that the trials will proceed as appeals [Al Jazeera report], though they have been reassured by Bahraini foreign minister Khalid Al-Khalifa that the evidence and testimony against the medics would be examined de novo.

Shortly after the convictions were handed down, the medics urged the UN to investigate claims of abuse [JURIST report] and due process violations. Bahraini King Hamad bin Isa Al Khalifa [official profile] announced in August 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). 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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Nigeria village files $1 billion water pollution suit against Shell
Maureen Cosgrove on October 23, 2011 1:08 PM ET

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[JURIST] A Nigerian village on Tuesday filed a lawsuit in US federal court against Royal Dutch Shell PLC [corporate website] alleging the oil company polluted a drinking water well with benzene at levels 900 times the limits set by the World Health Organization (WHO) [official website]. The lawsuit is based on a UN Environment Programme (UNEP) [official website] report [materials] assessing the impact of oil contamination on the environment and public health in Ogoniland, a village in the Niger Delta region of Nigeria. The report, which was published in August, found high levels of the carcinogen benzene as well as several inches of refined oil floating in groundwater that the village uses for drinking water. The UN investigators suggested that both Royal Dutch Shell and the Nigerian state-run oil company were responsible for the pollution, though Royal Dutch Shell abandoned the area in 1993. The complaint, which was filed in the US District Court in the Eastern District of Michigan [official website], contends that Royal Dutch Shell's actions were willfully negligent [AFP report] in contaminating groundwater. The plaintiffs filed suit on Alien Tort Statute (ATS) [text] grounds and are asking for $1 billion in damages, an injunction and immediate cleanup.

The US Supreme Court [official website] granted certiorari in two cases last week to determine whether political organizations and oil companies, including Royal Dutch Shell, are immune from US lawsuits [JURIST report] under the ATS. The plaintiffs in both cases allege human rights violations against an entity other than an individual person and the circuit courts have reached conflicting decisions with respect to interpretations of the ATS. The Supreme Court's decision will likely have an impact on the outcome of the Nigerian villagers' lawsuit. This case in not the first time Shell has faced legal action in Nigeria, however. A $15.5 million settlement [JURIST report] was reached in June 2009 between Royal Dutch Shell and the families of nine Nigerian activists who were killed in 1995. In 2006, a Nigerian court ordered Shell to pay [JURIST report] $1.5 billion for its role in environmental damages that took place within the country. In January, the US Court of Appeals for the Second Circuit [official website] reversed [JURIST report] a district court opinion, reviving two lawsuits brought by Nigerian families against Pfizer under the ATS.




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Libya PM declares official liberation from Gaddafi regime
Andrea Bottorff on October 23, 2011 11:53 AM ET

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[JURIST] Libyan transitional Prime Minister Mahmoud Jibril [official profile] on Sunday declared the country's official liberation from the regime of former leader Muammar Gaddafi [BBC profile; JURIST news archive] and set a schedule for establishing a new government. Jibril made the announcement in front of thousands of supporters celebrating in the city of Benghazi, the location of the National Transitional Council (NTC) [website] and where the first uprisings sparked the Libya conflict [JURIST feature] eight months ago. Jibril and other NTC officials thanked the opposition fighters, as well as international organizations like the United Nations [official website], for their support during the conflict and pledged to create an interim government within a month and to hold elections [Al Jazeera report] in eight months. Jibril also said Islamic sharia law would form the basis of law under the new government [AP report] and that any law in contradiction would be nullified. The declaration of liberation comes three days after Gaddafi's capture and death [JURIST report] at the hands of opposition forces in his hometown of Sirte. Gaddafi's body has been on display [Reuters report: graphic content] since Friday in the city of Misrata, drawing large crowds of visitors wanting to see the body and take photos. Jibril also announced on Sunday that they would release Gaddafi's body [TOI report] to his extended relatives for burial in a location to be determined by the NTC and Gaddafi's family.

Libyan civilians and NTC officials continue to celebrate the news of Gaddafi's death, and several world leaders have expressed relief and support for Libya. UN Secretary-General Ban Ki-Moon [official profile] said this week that Gaddafi's death marked "an historic transition" for the country and urged Libyans to stop fighting and promote peace [UN News Centre report]. On Friday, the UN Office of the High Commissioner on Human Rights (OHCHR) [official website] called for a full investigation [JURIST report] into Gaddafi's death, a request that came amid contradictory accounts and uncertainty [Reuters report] about how exactly the killing took place. UN Special Rapporteur on extrajudicial, summary or arbitrary executions [official website] said that states need to respect international standards [press release] on the use of lethal force during an arrest [UN News Centre report]. Gaddafi's death marks the latest milestone in the Libya conflict, which began in February [JURIST report] as part of a wider protest movement, commonly referred to as the "Arab Spring," that had spread throughout the Middle East and North Africa.





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Federal judge dismisses Arizona counterclaim over immigration law
Andrea Bottorff on October 23, 2011 10:21 AM ET

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[JURIST] A federal judge for the US District Court for the District of Arizona [official website] on Friday dismissed a counterclaim [order, PDF] filed by Arizona Governor Jan Brewer (R) [official website] and state Attorney General Tom Horne [official profile] against the US government in the lawsuit challenging the controversial Arizona immigration law [SB 1070 materials; JURIST news archive]. While the court ruled that Arizona had standing to bring the counterclaim, the court barred several counts in the claim because they had already been litigated before the court in a 1995 case. The court also held that Arizona failed to state valid claims and the claims would be dismissed, even if they had not already been precluded from litigation, because they offered political instead of legal questions. Brewer issued a statement Friday criticizing the decision [text, PDF] and expressing hope that the case will appear before the US Supreme Court [official website]. The US Department of Justice (DOJ) [official website] filed suit [JURIST report] last year against Brewer seeking to permanently enjoin the state's immigration law. The complaint states that the law is preempted by federal law and therefore violates the Supremacy Clause [text] of the US Constitution.

The controversial Arizona immigration law has influenced other anti-immigration laws in states such as Alabama, Georgia, Indiana, Oklahoma, South Carolina, Utah and Virginia [JURIST reports]. Some critics have argued that the stricter state immigration laws do not comply with federal law [JURIST op-ed] and only serve to complicate the system. Earlier this month, the DOJ filed a motion in the US Court of Appeals for the Eleventh Circuit [official website] to halt enforcement [JURIST report] of a controversial Alabama immigration law [HB 56 text] that expands restrictions on undocumented immigrants. The law requires school officials to verify the immigration status of children and parents, authorizes police to detain an individual and ask for papers if the officer has "reasonable suspicion" that the driver is in the country illegally, and requires businesses to use the federal E-Verify system [official website] to determine whether potential employees are legal residents. Since the legislation passed, 16 countries have 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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Tenth Circuit reinstates Roadless Rule in national forests
Julia Zebley on October 22, 2011 3:58 PM ET

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[JURIST] The US Court of Appeals for the Tenth Circuit [official website] unanimously ruled [opinion text] to restore the Roadless Rule [text], ending a 2008 national injunction [JURIST report]. The Roadless Rule blocks road-building and commercial timber harvesting on expanses of roadless areas around the country, primarily the National Forests. The National Forest Services (NFS) and the US Department of Agriculture [official websites] argued that promulgation of the Roadless Rule did not violate the National Environmental Policy Act (NEPA) and the Wilderness Act [texts], and that they believed a national prohibition on the law was inappropriate. The court agreed that a national injunction was not permissible, and that the agencies had leverage to enforce the Roadless Rule:
[A]gencies have considerable discretion to define the purposes and objectives of a proposed action, as long as they are reasonable. In this action, the Forest Service stated that the defined purpose of the Roadless Rule was, to provide long-term "protect[ion] [of] the values prevalent in roadless areas" by "immediately stop[ping] activities that have the greatest likelihood of degrading desirable characteristics of [IRAs]."... To achieve the defined purpose of the proposed rule, "the agency determined that only those uses and activities that are likely to significantly alter landscapes and cause landscape fragmentation on a national scale [would] be considered for prohibition in this proposal." [...] Unlike the district court, we will defer to the Forest Service's judgment on this issue. Accordingly, we find that the Forest Service reasonably limited the detailed alternatives analysis to the three alternatives—in addition to the required "no action" alternative—that prohibited road construction, because any alternative permitting road construction to a greater extent would not further the defined objective of the Roadless Rule and would therefore not be "reasonable."
Earthjustice [advocacy website], who argued the case for a number of environmental groups, praised [press release] the decision as a major victory: "There's mostly bad news in the headlines these days; this is most definitely of the other kind." However, a defender of the injunction, the Colorado Mining Association [advocacy website] stated [press release, PDF] that the ruling threatens mining jobs in the region, as well as limiting access to vital minerals.

The Roadless Conservation Area Rule was implemented by former president Bill Clinton in 2001 and replaced by the Bush administration in 2005. The Clinton-era rule would have prohibited mining, logging, and road construction in the forests of 38 states and Puerto Rico, totaling more than 58 million acres of land. The Clinton administration measure was effectively overturned [JURIST report] in 2005 by the State Petitions Rule [text], enacted by the US Department of Agriculture [official website] under President George W Bush. The State Petitions Rule allowed governors to petition for Roadless Rule protections, depending on their individual state needs, in lieu of blanket protection. The US Court of Appeals for the Ninth Circuit [official website] in 2009 affirmed a district court ruling reinstating the Roadless Rule [JURIST report], a decision analyzed [JURIST op-ed] by JURIST Hotline contributor Mike Dubrasich, Executive Director of the Western Institute for Study of the Environment [advocacy website]. In March of 2009, the US House of Representatives voted to approve [JURIST report] the Omnibus Public Land Management Act of 2009 [HR 146 materials], a collection of more than 160 bills aimed at preserving federal land as wilderness areas. The Act includes a rule which allows governors to request that regulations on the management of roadless areas be developed to meet the needs of individual states.




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Australia to petition UK to re-open cases of its soldiers convicted of war crimes
Julia Zebley on October 22, 2011 2:07 PM ET

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[JURIST] On Friday, Australian Attorney General Robert McClelland [official website] announced [ABC News transcript] that he will be petitioning the United Kingdom's Ministry of Defense [official website] to re-examine the war crime convictions of Australian Lieutenants Harry "Breaker" Morant [advocacy website] and Peter Handcock during the Boer War. Morant and Handcock were convicted through a court martial of murdering Boer civilians and sentenced to death by firing squad 18 hours later. McClelland believes there are issues of judicial fairness that need to be confronted:
There was a range of material, for instance in the court of enquiry which was held before the court martial, the accused weren't provided with any legal representation. That enquiry also heard evidence that wasn't provided to the accused. The defense lawyer was engaged with essentially one day's notice. The prosecution had three months and the defense lawyer was put in a conflict of interest representing all three accused rather the accused having separate representation. ... I am advised indeed by government lawyers that if established they would also be heinous breaches of the procedures of 1902.
McClelland differentiated the case from previous unsuccessful attempts as looking solely at procedural defects rather than questioning whether or not Morant and Handcock had British orders to shoot the prisoners. He further stated he wanted to make clear to Britain that questions still exist about the government's fair treatment of the Australian soldiers [ABC News report]. Last year, Britain's Secretary of State for Defense, Liam Fox, rejected a petition for pardons brought by several members of Australian parliament.

Morant and Handcock remain the only Australian citizens convicted of war crimes, when they executed Boer civilians and a German missionary in 1901. Both Morant and Handcock claimed they were ordered by British commanders to "take no prisoners" and thus were not culpable for the deaths. A third Australian soldier, George Whitton, was convicted for the murders but was not executed after King George VII received a petition from 80,000 Australian citizens asking for mercy. Morant was well-known as a poet, and his death has been seen by many Australians as an injustice, and a symbol of the United Kingdom's destructive colonial rule over the nation. Despite the support behind absolving Morant and Handcock, many disagree with seeking a pardon for the pair. McClelland admitted that, British orders or not, the two murdered civilians, an act that was unacceptable. The Australian Defense Association [advocacy website] described the petition as arrogant [The Australian report]. Although often regarded as a folk hero in Australia, Morant is viewed in South Africa as a war criminal and citizens have been critical of attempts to pardon the duo [Digital Journal report].




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UN rights expert warns lethal force during arrests could violate international standards
Zach Zagger on October 22, 2011 12:50 PM ET

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[JURIST] United Nations Special Rapporteur on on extrajudicial, summary or arbitrary executions, Christof Heyns [official profile], on Thursday urged respect for international standards [press release] concerning the use of lethal force during arrests and warned that the growing use of targeted killings with unmanned drones is legally problematic. Heyns made a report to the UN the General Assembly saying that "International standards provide adequate room for States to pursue their legitimate security interests, both at home and abroad," and warned that abusing these standards to reach short-term goals could cause "long-term damage to the protection of human rights." Heyns said that:
While it is correct that lethal force should not be used unless there is a reasonable suspicion that the suspect has committed a crime involving serious violence, or has threatened to do so, that is not enough. For deadly force to be used by the police, there must be an immediate or ongoing threat to the public if the person were to escape.
Heyns also warned that the use of unmanned drones for targeted killings is dangerous because it leads to a "global war without borders, in which no one is safe." He called for an international discussion on the growing use of unmanned drones.

The United States has been at the center of controversy with using lethal force to arrest international terror suspects and the targeted killings of terrorist leaders with unmanned drone strikes. Last month, a CIA drone strike in Yemen killed [JURIST report] senior al Qaeda [GlobalSecurity backgrounder] leader and US citizen Anwar al-Awlaqi [BBC profile; JURIST news archive]. Last May, US forces killed [JURIST report] al Qaeda leader Osama Bin Laden [WP obituary; JURIST news archive] while attempting to capture him at his hideout in Pakistan. US Attorney General Eric Holder [official website] later defended the killing [JURIST report] saying it was lawful and justified. Testifying before the US Senate Judiciary Committee [official website], Holder said that the shooting of Bin Laden was "consistent with our values," and that the soldiers who killed him "conducted themselves totally appropriately." US State Department [official website] Legal Adviser Harold Koh [official profile] has also defended the legality of both killing Bin Laden and the targeted killings with unmanned drones [JURIST reports].




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EPA to develop standards for fracking wastewater discharge
Michael Haggerson on October 21, 2011 3:39 PM ET

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[JURIST] The Environmental Protection Agency (EPA) [official website] on Thursday announced plans to develop standards for the disposal of wastewater [press release] from the process of hydraulic fracturing [EPA backgrounder]. Hydraulic fracturing, or fracking, is a process in which water, sand and chemicals are pumped into the ground to create fractures in rocks, which allows trapped gas and oil to come to surface. Environmental and health concerns associated with hydraulic fracturing include contamination of ground water, migration of gases and hydraulic fracturing chemicals to the surface and the potential mishandling of waste. Currently there is no comprehensive set of national regulations governing the disposal of wastewater from the fracking process. The EPA said that its plan to institute new regulations in this area falls in line with US President Barack Obama's Blueprint for a Secure Energy Future [text, PDF; official website]. The Blueprint calls for a three-part process for reducing American dependence on oil and to develop cleaner sources of energy: "safely and responsibly" develop domestic energy supplies, give consumers more choices to reduce costs and save energy, and develop clean energy technology. Specifically to fracking, the Blueprint offers three goals for responsibly developing natural gas extraction:
  • Disclosure of Fracking Chemicals: The Administration is calling on industry to be more transparent about the use of fracking chemicals.
  • Leading by Example: In April, DOI will hold a series of regional public meetings to discuss the potential for expanding shale gas production on Federal lands. These events will provide a forum to develop a framework for responsible production on public lands.
  • Research: The Federal government will conduct research to examine the impacts of fracking on water resources. At Congress' direction, EPA will continue with its study of fracturing impacts on drinking water and surface water, and DOE will likewise sponsor research on these issues.
Extraction of natural gas from shale formations has grown to 15 percent of the total US production of natural gas and this figure is expected to triple within the next decade. The EPA has stated that the goal of the new regulations is to protect Americans' health while at the same time ensuring access to important energy resources.

The recent growth in hydraulic fracturing technology for the extraction of natural gas from shale formations has been a controversial issue in the US. In June the New Jersey Legislature [official website] completely banned hydraulic fracturing [JURIST report], although it was largely just a symbolic gesture since New Jersey sits over a very small portion of shale gas. Earlier that month, the New York attorney general filed a complaint against the EPA for failing to study the impact of fracking [JURIST report]. Fracking has also been controversial internationally. In May, France's lower house, the National Assembly [official website, in French], approved a bill [TA Bill No. 658, materials, in French; JURIST report] to prohibit the drilling of gas and oil through hydraulic fracturing and to repeal hydraulic fracturing licenses granted to companies.




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Canada rights group files torture complaint against Bush
Michael Haggerson on October 21, 2011 2:55 PM ET

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[JURIST] The Canadian Centre for International Justice (CCIJ) [advocacy website] on Thursday filed a complaint [text, PDF] in the Surrey Provincial Court on behalf of four men against former US president George W. Bush [JURIST news archive] on torture charges [press release]. Bush was in Surrey on Thursday to attend the Surrey Regional Economic Summit [official website]. According to the CCIJ, the four men, three of whom have since been released without any formal charges ever being brought against them, endured "horrific and illegal" treatment while being detained at military bases in Afghanistan and Guantanamo Bay. CCIJ alleges that Bush violated the UN Convention Against Torture (CAT) [text]. Former UN Special Rapporteur on Torture, Manfred Nowak, stated:
The main aim of the [CAT] was to eradicate safe havens for persons who commit, order, or participate in acts of torture worldwide. States parties to the Convention, including Canada, have a legal obligation to arrest all persons suspected of torture with the aim of bringing them to justice. There is plenty of evidence that President Bush authorized enhanced interrogation methods against suspected terrorists, some of which clearly amount to torture, such as waterboarding.
The CCIJ, along with the Center for Constitutional Rights (CCR) [advocacy website] initially filed an indictment against Bush [JURIST report] in September accusing Bush of sanctioning enforced disappearances, secret detention and a variety of acts of torture.

Calls for the investigation or arrest of former president Bush have largely been rejected. In February, the CCR and the European Center for Human Rights (ECCHR) [advocacy websites] urged the signatory states of the CAT to pursue criminal charges against the former president [JURIST report]. The call came as the rights groups announced that two criminal complaints [text, PDF] were to be filed in Switzerland against Bush before he canceled his trip to the country. Calls to investigate the criminal culpability of Bush and officials in his administration have been consistently rejected 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 [18 USC § 2340A]. Also citing his memoir, the ACLU argued that the use of waterboarding has historically been prosecuted as a crime in the US. The letter also argued that failure to investigate Bush would harm the US's ability to advocate for human rights in other countries. Bush's secretary of defense Donald Rumsfeld [JURIST news archive] has also faced possible criminal charges in Europe, 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].




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Women's group challenges Wisconsin voter ID law
Sarah Posner on October 21, 2011 11:35 AM ET

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[JURIST] The League of Women Voters of Wisconsin filed a lawsuit [complaint, text] Thursday in Dane County Circuit Court [official website] challenging Wisconsin's new voter identification law as a violation of the Wisconsin Constitution [text, PDF]. Plaintiffs seek declaratory and injunctive relief in challenging the constitutionality of parts of Wisconsin Act 23 passed in 2011. The controversial voter identification law states that any qualified voter must present photo identification at the polls in order to vote in Wisconsin elections for local, state, or federal offices, or referenda. Plaintiffs argue that the new law will place a burden on electors who do not posses a state ID card, who then need to appear in person at the DMV, present proof of identity and pay a fee. The complaint states that the new photo ID requirement will not prevent voting by those ineligible after a conviction, nor will it prevent electors from voting more than once. Plaintiffs assert that Article II, Section 2 of the Wisconsin Constitution provide the exclusive basis for constitutional requirements for voting. The complaint alleges:
The Wisconsin Constitution does not authorize the Legislature to exclude an elector from the right of suffrage for any reason other than those set out in Article II, Section 2, or to impose additional qualifications on the right to vote that are not expressly set out by Article II, Sec. 1.
The Wisconsin government now has 45 days to respond [Wisconsin State Journal report] to the lawsuit. The state can allow the case to proceed in circuit court or petition the Wisconsin Supreme Court directly.

There are now 30 US states that require voters to present some form of ID at the polls, including 14 states that require photo ID, but the issue remains controversial. In August, South Carolina's Senate Minority Caucus filed an objection [JURIST report] with the US Department of Justice (DOJ) [official website], asking for the rejection of the state's new voter identification law. The caucus argued that the law, which requires South Carolina residents to present a current government-issued ID, is too restrictive and may disenfranchise African Americans and elderly voters. The objection followed earlier attempts by several South Carolina civil rights groups [JURIST report] to prevent the law from being implemented. In October 2010, a three-judge panel for the US Court of Appeals for the Ninth Circuit [official website] struck down [JURIST report] a portion of an Arizona law requiring proof of citizenship for voter registration. The court held that the law, Proposition 200, was inconsistent with the National Voter Registration Act of 1993 (NVRA), which was passed with the intent of increasing voter registration and removing barriers to registration imposed by the states.




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UN rights office calls for investigation into Gaddafi killing
Sarah Posner on October 21, 2011 10:53 AM ET

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[JURIST] The UN Office of the High Commissioner on Human Rights (OHCHR) [official website] on Friday called for a full investigation into the killing [JURIST report] of former Libyan leader Muammar Gaddafi [BBC profile; JURIST news archive] in his hometown of Sirte on Thursday. Rupert Colville, the spokesman for UN High Commissioner for Human Rights Navi Pillay [official website] told reporters that there needs to be an investigation into whether Gaddafi was killed during fighting with the rebels or if this was an execution. The OHCHR's call for an investigation into the killing of Gaddafi comes amid contradictory accounts and uncertainty [Reuters report] about how exactly the killing of Gaddafi took place. Colville said that there are four or five versions of how he died but no clear conclusion has been reached. The first image taken of Gaddafi depicts him being captured alive, while the next one shows him dead. In the laws of war, there is a clear difference between someone being killed during combat and being summarily executed. The UN Special Rapporteur on extrajudicial, summary or arbitrary executions [official website] said that states need to respect international standards [press release] on the use of lethal force during an arrest [UN News Centre report]. Amnesty International (AI) [official website] on Friday also urged for an investigation into Gaddafi's death [press release]. AI stated that it would be a war crime if Gaddafi were deliberately killed after capture. There are several different accounts of what happened along with two videos of Gaddafi's death, but the factual account of the killing remains unclear.

Libyan Prime Minister Mahmoud Jibril [official profile] confirmed at a press conference Thursday that Libyan opposition forces on captured and killed former leader Gaddafi. The cause of death is unknown, but eyewitnesses claim that he died from gunshot wounds. Also on Thursday, Libyan Information Minister Mahmoud Shammam confirmed the death of Gaddafi's son, Mutassim Gaddafi. Officials have also announced the arrests of Gaddafi's son, Saif al-Islam Gaddafi and former Gaddafi spokesman Moussa Ibrahim, although later reports indicated that Saif al-Islam remains at large. Libyan civilians and National Transitional Council (NTC) [official website] officials celebrated the news of Gaddafi's death, and several world leaders expressed relief and support for Libya. UN Secretary-General Ban Ki-Moon [official profile] said the day marked "an historic transition" for the country and urged Libyans to stop fighting and promote peace. Gaddafi's death marks the latest milestone in the Libya conflict [JURIST feature], which began in February [JURIST report] as part of a wider protest movement that had spread throughout the Middle East and North Africa. The UN Human Rights Council (UNHRC) [official website] published a 92-page report saying that Libyan authorities committed crimes against humanity [JURIST report] under Gaddafi's direct orders during the conflict.




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Federal court dismisses lawsuit over US Libya involvement
Hillary Stemple on October 21, 2011 9:29 AM ET

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[JURIST] A judge for the US District Court for the District of Columbia [official website] on Thursday dismissed a lawsuit [opinion, PDF] brought by group of 10 congressmen alleging that US President Barack Obama [official websites] violated Article I Section 8 [Cornell LII backgrounder] and the 1973 War Powers Resolution [50 USC § 1541 et seq] by authorizing increased military strikes in Libya without Congressional approval. The complaint [text, PDF] filed by the congressmen [JURIST report] in June, stated that "[t]he Libyan operations ordered by President Obama constitute "war" for the purpose of Article I, Section 8, Clause 11 of the Constitution. President Obama prosecuted the war without a declaration of Congress with the use of funds never approved for such a war." Judge Reggie Walton ruled that the legislators lacked standing to challenge the military action because they have an adequate remedy available to them through legislative means. Walton stated that because the legislators have had the opportunity to vote on ending the Libyan action, "[t]hey have not demonstrated that they are without a legislative remedy." Walton also chided the legislators for seeking a remedy through the courts:
While there may conceivably be some political benefit in suing the President and the Secretary of Defense, in light of shrinking judicial budgets, scarce judicial resources, and a heavy caseload, the Court finds it frustrating to expend time and effort adjudicating the relitigation of settled questions of law. The Court does not mean to imply that the judiciary should be anything but open and accommodating to all members of society, but is simply expressing its dismay that the plaintiffs are seemingly using the limited resources of this Court to achieve what appear to be purely political ends, when it should be clear to them that this Court is powerless to depart from clearly established precedent of the Supreme Court and the District of Columbia Circuit.
Walton specifically noted that Representative Dennis Kucinich (D-OH) [official website] was involved in a similar lawsuit filed against former president George W. Bush in 2002, following Bush's withdrawal form the Anti-Ballistic Missile Treaty. That suit was also dismissed for lack of standing.

The court's ruling came as Obama was announcing the death of former Libyan leader Muammar Gaddafi [BBC profile; JURIST news archive]. Gaddafi was captured and killed [JURIST report] on Thursday after military forces loyal to the newly formed government, the National Transitional Council (NTC) [website], took control of Sirte [Al Jazeera report]. Gaddafi's death marks the latest milestone in the Libya conflict [JURIST feature], which began in February [JURIST report] as part of a wider protest movement that had spread throughout the Middle East and North Africa. Gaddafi and his supporters have been on the run since August, when rebel forces supported by the NTC captured the capital city of Tripoli. Earlier in the summer, the International Criminal Court (ICC) [official website] had issued an arrest warrant [JURIST report] for Gaddafi for crimes against humanity, although some commentators suggested that Gaddafi should face trial in Libya [JURIST op-ed]. The UN Human Rights Council (UNHRC) [official website] published a 92-page report saying that Libyan authorities committed crimes against humanity [JURIST report] under Gaddafi's direct orders during the conflict, including 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." Gaddafi ruled Libya as a dictator for 42 years after taking power in a coup, and was known for his eccentricity and for the tight control he kept over the country.




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Canada court expands rights of gay non-biological parents
Hillary Stemple on October 21, 2011 8:41 AM ET

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[JURIST] A judge for the Queen's Court Bench of Alberta [official website] has granted legal rights to a non-biological father of a child—the ex-partner of the biological father—over the biological father in a child custody case. While the judge stated that the biological father, identified as "H", would remain the legal parent [Calgary Sun report] of the unidentified eight-year-old girl, the non-biological father, identified as "R", will maintain physical guardianship over the girl. R has been acting as the primary caregiver of the girl since 2006. In order for R to obtain parental status, the judge stated that he will have to pursue a constitutional challenge over the limitations placed on rights of gay non-biological parents. The girl's biological mother, identified as "D", also maintains her parental status. In her decision, the judge stated that a clear gap exists in Alberta's Family Law Act [materials], which fails to legally define gay men as fathers.

The US court system is also being utilized to expand the scope of gay parental rights. Last week, the US Supreme Court [official website] declined to review [JURIST report] a case involving a same-sex couple who want both their names on the birth certificate of an adopted child. Though adopted in New York, the child was born in Louisiana, where the couple was refused their request. The couple appealed, and, in April, the US Court of Appeals for the Fifth Circuit [official website] ruled en banc against the parents [JURIST report], finding that "adoption is not a fundamental right," and that "Louisiana has a legitimate interest in encouraging a stable and nurturing environment for the education and socialization of its adopted children." In May 2010, the New York Court of Appeals [official website] issued two rulings [JURIST report] expanding the rights of non-biological gay and lesbian parents. In one case the court determined that a lesbian can assert parental rights over the biological child of her partner, reversing a lower court decision [JURIST report]. In the second case, the court ruled that a lesbian could seek child support from her former partner.




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UN investigator calls for increased protection for children in West Bank, Gaza Strip
John Paul Putney on October 21, 2011 8:07 AM ET

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[JURIST] UN Special Rapporteur on human rights for the West Bank and Gaza Strip [UNICEF backgrounder], Richard Falk called Thursday, called [press release] for better guidelines on the treatment of Palestinian youth [UN News Centre report] arrested by the Israeli military. in a report to the General Assembly's human rights committee, Falk expressing concern about reports of violence against children during arrest [AP report] and detention:
Since 2007, the number of Palestinian children arrested and prosecuted has risen each year, and there is abundant evidence of child abuse associated with interrogations and arrests of children. Arrest procedures documented include arrests in the middle of the night, removal of child from parents for questioning, abusive treatment in detention, and conviction procedures that appear to preclude findings of not guilty.
Falk indicated prolonged occupation is deforming child development because of "pervasive deprivations affecting health, education, and overall security." The special rapporteur urged Israel to adopt guidelines in line with international humanitarian and human rights standards.

Israel has faced ongoing criticism from the UN and international human rights groups for its action in the Palestinian territories, which have been under Israeli military control since 1967. Last month, Turkey's Minister of Foreign Affairs Ahmet Davutoglu said that Turkey will sue Israel [JURIST report] in the International Court of Justice (ICJ) [official website] over the legality of Israel's Gaza Strip blockade. Also last month, the UN criticized Israel for using excessive force [JURIST report] during a May 2010 flotilla incident [JURIST news archive], in which Israeli forces raided several Turkish ships bound for the blockaded Gaza Strip. In June, UN High Commissioner for Human Rights Navi Pillay condemned the killings of between 30 and 40 protesters [Reuters report] which had been killed by Israeli security forces along the ceasefire line between occupied borders. Nearly 20 civilian protesters were reportedly killed during a protest on June 5 marking the anniversary of the 1967 Middle East war [NPR backgrounder]. In January, a UN official alleged [JURIST report] that Israeli authorities had committed several illegal acts in the Palestinian territories since the start of the year, making the prospect of a viable Palestinian state unlikely.




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UN legal chief urges Cambodia government not to interfere with Khmer Rouge tribunal
John Paul Putney on October 21, 2011 7:10 AM ET

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[JURIST] UN Under-Secretary General for Legal Affairs Patricia O'Brien on Thursday urged the government of Cambodia to refrain from interfering with the UN-backed tribunal tasked with trying those alleged responsible for mass killings and other crimes committed under the Khmer Rouge [JURIST news archive; BBC backgrounder]. In a meeting in with Cambodia's Deputy Prime Minister Sok An to discuss recent developments at the tribunal—the Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website; JURIST news archive]—O'Brien expressed concern and reiterated the call to respect the integrity and independence of the tribunal. In an official statement, her office noted:
The Legal Counsel strongly urged the Royal Government of Cambodia to refrain from statements opposing the progress of Cases 003 and 004 and to refrain from interfering in any way whatsoever with the judicial process. She emphasized the obligation of the Royal Government of Cambodia to cooperate fully with the ECCC.
The pressure for UN action results from the resignation of Siegfried Blunk [JURIST report], one of the judges for the ECCC, who blamed political interference for his decision.

Earlier this week, the UN-backed ECCC announced that the trial of the surviving Khmer Rouge leaders will begin [JURIST report] on Monday, November 21. Last week, rights groups urged the UN [JURIST report] to assure that Cambodia will not interfere with the tribunal's work. In September, the ECCC ordered the trials of four alleged Khmer Rouge leaders be split into a series of smaller trials [JURIST report]. The ECCC said that the separation of trials will allow the tribunal to deliberate more quickly in the case against the four elderly defendants.




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UK top judge: national courts not bound by Europe rights court
Andrea Bottorff on October 20, 2011 4:14 PM ET

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[JURIST] The UK's top judge, Lord Chief Justice of England and Wales Lord Igor Judge [official profile], said on Wednesday that UK courts are not bound by decisions from the European Court of Human Rights (ECHR) [official website]. Speaking before the Lords Constitution Committee [official website], Judge suggested that while UK courts are not required to follow the ECHR [Guardian report], they should consider ECHR decisions when deciding cases. UK Supreme Court [official website] President Nicholas Phillips [official profile] countered Judge, saying that ECHR decisions will always control UK courts as long as the Human Rights Act of 1998 [text], which ratified the European Convention on Human Rights [text, PDF], remains in effect. UK Prime Minister David Cameron [official website] has expressed frustration at previous ECHR decisions and may use the UK's upcoming presidency of the Council of Europe [official website] to influence changes in the court [Telegraph report].

The UK government and the ECHR have faced increasing conflict. In March, the UK Ministry of Justice [official website] announced the creation of a commission, suggested by Cameron, which will consider the implementation of a British Bill of Rights [statement, text]. Former UK Lord Chief Justice Lord Woolf has warned that a Bill of Rights would conflict [JURIST report] with the European Convention on Human Rights, which the UK has incorporated into its law. While the government has not stated an intention to withdraw from the European Convention on Human Rights, Woolf warned that continued adherence to the convention combined with the creation of Bill of Rights would create complications for judges in determining which to follow and further the existing conflict between the UK and the ECHR. Cameron suggested the creation of the commission in February after the UK House of Commons [official website] voted to reject an ECHR ruling [JURIST reports] and continue preventing prisoners from voting in British elections. The following month, the UK government took legal action to overturn [JURIST report] the ECHR ruling.




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Convicted Nazi guard Demjanjuk claims US withheld evidence
Michael Haggerson on October 20, 2011 2:52 PM ET

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[JURIST] Lawyers for convicted Nazi guard John Demjanjuk [NNDB profile; JURIST news archive] filed a request in the US District Court for the Northern District of Ohio [official website] for a hearing to determine whether the FBI failed to turn over evidence that could have assisted Demjanjuk's case. Demjanjuk was convicted in Germany [JURIST report] in May on more than 28,000 counts of accessory to murder [AP report]. Demjanjuk argues that the US government failed to turn over a 1985 FBI report suggesting that his Nazi ID card used against him at trial could potentially have been a Soviet-made fake. Demjanjuk requested a stay in his trial to investigate the FBI report [JURIST report] but was denied by the trial judge. After his conviction in May, Germany denied a request from Spain to have Demjanjuk extradited [JURIST report] so that he could stand trial in Spain on charges of genocide and crimes against humanity.

The five-year sentence Demjanjuk received in May was less than the six years sought by the prosecution [JURIST report], and he was released after being convicted. Judge Ralph Alt ordered his release because of his advanced age and because the verdict is not final. Demjanjuk's trial, which began [JURIST report] in November 2009, was marked by extensive delay. Last May, the court denied a motion to dismiss the charges [JURIST report] filed by the defense, which argued there was a lack of credible evidence. The court rejected the argument, saying they found the evidence against Demjanjuk to be strong. In October 2009, Demjanjuk was found fit to stand trial after the court rejected appeals relating to his health [JURIST reports], although the court limited hearings to no more than two 90-minute sessions per day. Demjanjuk fought a lengthy legal battle over his alleged involvement with Nazi death camps during World War II. He was deported to Germany after the US Supreme Court [official website] denied his stay of deportation [JURIST report].




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Iran denies UN report on increasing human rights violations
Michael Haggerson on October 20, 2011 2:15 PM ET

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[JURIST] Iran's deputy ambassador to the UN, Eshagh al-Habib, on Thursday denied allegations in a recent UN report that human rights violations in Iran are on the rise [JURIST report]. Al-Habib criticized the report for being poorly sourced, non-neutral and simply untrue [Al Jazeera report]. The report cited an increase in persecutions among political activists and journalists, detention conditions for opposition leaders and their wives, the torture and mistreatment of detainees, the significant administration of the death penalty to people under 18 years of age and "exorbitant bail requirements" for human rights defenders and religious practitioners. However, UN Special Rapporteur on Iran Ahmed Shaheed, the author of the report, stated that he was encouraged by Iran's willingness to cooperate with him [UN News Centre Report] and that Iran "needs to be seen in a better light." He further focused on the need to maintain dialogue with Iran's political leaders in order to improve conditions in the country. The US issued a statement on Tuesday denouncing Iran's "'intensified' campaign of abuse" [press release]: "Under international law and its own constitution, Iran has committed to protect and defend the rights of its people, but officials continue to stifle all forms of dissent, persecute religious and ethnic minorities, harass and intimidate human rights defenders, and engage in the torture of detainees."

Iran has been heavily criticized for its alleged human rights abuses. Jailed Iranian journalist Isa Saharkhiz [Iran Press profile] in July urged [letter, DOC, in Persian] Shaheed to investigate prison conditions in Iran [JURIST report]. In May, rights groups decried [JURIST report] Iran's persecution of lawyers. In January, the International Campaign for Human Rights in Iran [official website] claimed that Iran is on an "execution binge" [JURIST report], killing one prisoner every eight hours. In January, prominent Iranian human rights lawyer Nasrin Sotoudeh was sentenced [JURIST report] to 11 years in prison. Sotoudeh was found guilty [Guardian report] of "acting against national security" and "making propaganda against the system" for which she will serve five and one years, respectively. She was the lawyer for Arash Rahmanipour, who was arrested for his role in the post-election protests on charges of moharebeh, or being an enemy of God. Rahmanipour was executed [JURIST report] in January 2010. Also in January, Iranian chief prosecutor Abbas Jafari-Dolatabadi delivered a speech at Tehran University indicating that he would prosecute opposition leaders [JURIST report] for political unrest that took place after the country's 2009 presidential election [JURIST news archive].




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Libya PM confirms Muammar Gaddafi killed by opposition fighters
Andrea Bottorff on October 20, 2011 1:24 PM ET

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[JURIST] Libyan opposition forces on Thursday captured and killed former leader Muammar Gaddafi [BBC profile; JURIST news archive] in his hometown of Sirte, Libyan Prime Minister Mahmoud Jibril [official profile] confirmed at a press conference. Military forces loyal to the newly formed government, the National Transitional Council (NTC) [website], took control of Sirte [Al Jazeera report] on Thursday and soon after found, captured [video: graphic content] and killed Gaddafi. The cause of death is unknown, but eyewitnesses claim that he died from gunshot wounds [AP report]. Also on Thursday, Libyan Information Minister Mahmoud Shammam confirmed the death [Al Jazeera report] of Gaddafi's son, Mutassim Gaddafi. Officials have also announced the arrests of Gaddafi's son, Saif al-Islam Gaddafi and former Gaddafi spokesman Moussa Ibrahim. Libyan civilians and NTC officials celebrated the news of Gaddafi's death, and several world leaders expressed relief and support for Libya. UN Secretary-General Ban Ki-Moon [official profile] said the day marked "an historic transition" for the country and urged Libyans to stop fighting and promote peace [UN News Centre report].

Gaddafi's death marks the latest milestone in the Libya conflict [JURIST feature], which began in February [JURIST report] as part of a wider protest movement that had spread throughout the Middle East and North Africa. Gaddafi and his supporters have been on the run since August, when rebel forces supported by the NTC captured the capital city of Tripoli. Earlier in the summer, the International Criminal Court (ICC) [official website] had issued an arrest warrant [JURIST report] for Gaddafi for crimes against humanity, although some commentators suggested that Gaddafi should face trial in Libya [JURIST op-ed]. The UN Human Rights Council (UNHRC) [official website] published a 92-page report saying that Libyan authorities committed crimes against humanity [JURIST report] under Gaddafi's direct orders during the conflict, including 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." Gaddafi ruled Libya as a dictator for 42 years after taking power in a coup, and was known for his eccentricity and for the tight control he kept over the country.




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ICC requests explanation from Malawi for failure to arrest Sudan president
Dan Taglioli on October 20, 2011 12:54 PM ET

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[JURIST] The International Criminal Court (ICC) [official website] on Wednesday requested that the Republic of Malawi explain why that country's authorities failed to arrest Sudanese President Omar al-Bashir [case materials; JURIST news archive] during his widely reported visit there for a trade summit last weekend. Pre-Trial Chamber I of the ICC issued a resolution [decision, PDF; press release] that asks Malawi authorities to report "any observations" regarding the country's alleged failure to comply with cooperation requests sent by the ICC regarding arrest warrants for al-Bashir issued in 2009 and 2010. Malawi, being a state party to the Rome Statute since September 2002, and thus a member of the ICC, is under obligation to abide by such ICC cooperation requests in accordance with the statute. In addition to the cooperation requests issued generally, in anticipation of al-Bashir's arrival in Malawi, the ICC Registrar sent a note verbale to the Embassy of the Republic of Malawi in Brussels on October 13, reminding the nation of its legal obligations under the statute and asking for its cooperation with the arrest and surrender of al-Bashir. The note also invited Malawi to consult with the ICC over perceived difficulties in facilitating al-Bashir's arrest, but consultation by Malawi authorities has yet to take place. The ICC has issued two international warrants for al-Bashir's arrest on a total of 10 counts of genocide, war crimes and crimes against humanity in connection with the Darfur conflict [BBC backgrounder]. Under the Rome Statute, ICC member nations that do not comply with cooperation requests can be referred to the UN Security Council [official website] for non-cooperation.

Al-Bashir remains an extremely controversial figure in international politics for his actions during the Darfur conflict. Most recently, al-Bashir announced this month that Sudan will adopt an Islamic constitution [JURIST report]. Amnesty International (AI) [advocacy website], in a press release on the day of al-Bashir's visit, urged Malawi to arrest the Sudanese president [JURIST report] and surrender him to the ICC for prosecution. In June, AI urged Malaysia to withdraw an invitation for al-Bashir to participate in an event there and to arrest him if he travels to the country [JURIST report]. Also in June, ICC Chief Prosecutor Luis Moreno Ocampo issued a statement claiming that al-Bashir has continued to commit crimes against humanity [JURIST report] in Darfur. In May, the ICC urged Djibouti to arrest al-Bashir [JURIST report]. In October, the ICC requested that Kenya arrest al-Bashir [JURIST report] while he visited that year for a second time. Previously, al-Bashir had visited Kenya for the signing of the country's new constitution [JURIST report].




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Citigroup settles SEC fraud charges for $285 million
Dan Taglioli on October 20, 2011 11:39 AM ET

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[JURIST] Citigroup Inc. [corporate website] on Wednesday announced a $285 million settlement to resolve charges [complaint, PDF; press release] brought by the Securities and Exchange Commission (SEC) [official website] that a subsidiary of the global financial services firm defrauded investors who bought toxic housing-related debt during the housing crisis. Citigroup Global Markets Inc. (CGMI), Citigroup's principal US broker-dealer, marketed and sold in 2007 a $1 billion collateralized debt obligation (CDO) that defaulted fewer than nine months after it closed. CGMI allegedly misled investors [Reuters report] about the strength of the the CDO, named Class V Funding III, and failed to reveal that the company "had exercised significant influence over the selection of $500 million of the assets" in the CDO portfolio, and that it had taken a short position in those assets, essentially meaning it had placed bets elsewhere in the financial markets that the CDO would fail. The SEC summarized in its complaint:
By taking a short position with respect to the assets that it had helped select, Citigroup profited from the poor performance of those assets, while investors in Class V III suffered losses. The CDO securities on which Citigroup bought protection had a notional value of approximately $500 million, representing half of the Class V III investment portfolio. The marketing materials Citigroup prepared and distributed to investors did not disclose Citigroup's role in selecting assets for Class V III and did not accurately disclose to investors Citigroup’s short position on those assets. ... By engaging in the conduct described herein, [CGMI] violated Sections 17(a)(2) and (3) of the Securities Act of 1933 ... by negligently misrepresenting key deal terms.
Citigroup allegedly represented that the collateral manager of the CDO, a unit at Credit Suisse Group AG [corporate website], had independently selected the assets, while in reality about half had actually been selected by CGMI with the intention of taking the short position. Upon default Class V Funding III left the investors with losses even though Citigroup netted $160 million in fees and profits. Under the terms of the settlement, which still requires approval from US District Judge Jed Rakoff in Manhattan, Citigroup will disgorge the $160 million of alleged improper fees and profits, plus $30 million of interest, and pay a $95 million fine. Credit Suisse has agreed to settle with the SEC for $2.5 million. Citigroup settled without admitting wrongdoing.

Citigroup's settlement is the third between the SEC and a major bank accused of marketing a CDO without disclosing a short position or allowing investors to take one. In June JPMorgan Chase & Co [corporate website] settled similar fraud charges [JURIST report] for $153.6 million. The settlement included a $133 million fine and $20.6 million representing fraudulent profits and interest. In July 2010, Goldman Sachs [corporate website; JURIST news archive] agreed to a $550 million settlement with the SEC to resolve charges [JURIST report] that the firm marketed a subprime mortgage product and made misleading statements and omissions to investors in early 2007. Of the $550 million settlement, $300 million was to be paid to the US Treasury and $250 million disgorged to harmed investors. The penalty was the largest against a financial company in SEC history. Additionally, in December 2010 Bank of America (BOA) [corporate website] settled with the SEC [JURIST report] for $137 million, although the case did not involve investor fraud charges. There BOA was charged with using anti-competitive transactions with 20 state municipalities, putting at risk the tax-exempt status of municipal securities by establishing fraudulent fair market values using "improper bidding practices" between 1998 and 2002.




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ICTY prosecutor not appealing refusal to split Mladic trial
Maureen Cosgrove on October 19, 2011 1:21 PM ET

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[JURIST] The chief prosecutor at the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] said Wednesday that he will not appeal the court's decision to proceed with a single trial for former Serbian general and alleged war criminal Ratko Mladic [ICTY backgrounder, PDF; JURIST news archive]. The prosecutor sought to separate the indictment [JURIST report] in order to hold one trial for Mladic's conduct during the Srebrenica massacre [JURIST news archive], where approximately 8,000 people were killed, and one for all of his other charges during the Bosnian civil war [JURIST news archive]. The court denied [press release] the prosecutor's request last week on the grounds that separating the trials would be inefficient and could prejudice Mladic and unduly burden witnesses. Chief Prosecutor Serge Brammertz had argued that splitting the trials was warranted [AP report] because Mladic's health may decline over the course of the trial. Brammertz indicated that he would streamline the charges against Mladic in an effort to expedite the trial, which is likely to begin next year.

Serbian authorities captured Mladic [JURIST report] in May, ending a 16-year manhunt for the former general colonel and commander of the army of the Serbian Republic of Bosnia and Herzegovina. Mladic made his first appearance [JURIST report] at the ICTY in June, contesting the charges while simultaneously asking for more time to review them, which he was granted. At his second appearance [JURIST report] he refused to enter a plea. Before that, he had lost his final appeal in Serbia to avoid extradition, and was transported to The Hague [JURIST reports]. Mladic faces charges of genocide and crimes against humanity, including murder, political persecution, forcible transfer and deportations, cruel treatment and the taking of peacekeepers as hostages. He is most infamous for allegedly ordering the slaughter of 8,000 Muslim men and boys in the massacre of Srebrenica during the Bosnian civil war, the largest European genocide since the Holocaust.




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Oklahoma judge blocks new law restricting use of abortion pills
Andrea Bottorff on October 19, 2011 12:27 PM ET

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[JURIST] An Oklahoma state court judge on Wednesday issued a temporary injunction [docket materials] against a new Oklahoma law [House Bill 1970 text, RTF] that restricts how doctors may use abortion-inducing drugs to treat patients. Judge Daniel Owens of the District Court of Oklahoma County [official website] granted the motion for a temporary injunction [text, PDF] filed earlier this month by the Center for Reproductive Rights and the Oklahoma Coalition for Reproductive Justice (OCRJ) [advocacy websites], which argued that placing restrictions on the use of abortion-inducing drugs violates the equal protection clause of the Oklahoma Constitution [text]. The act would require doctors prescribing abortion drugs to meet stricter requirements, including administering the drug on location in the medical facility, scheduling mandatory follow-up appointments, explaining drug labels to patients and reporting possible negative drug reactions to the pharmaceutical manufacturers. Doctors who fail to meet one of the new requirements would be subject to professional sanctions and could be liable in legal actions taken by the mother, father or maternal grandparents of the aborted fetus. Plaintiffs argued in their petition that the new law does not serve a legitimate government interest and jeopardizes the safety of women seeking abortions [petition, PDF]. The law was scheduled to take effect on November 1, 2011, but will be suspended pending further court action.

Over the last year, Oklahoma has increased the restrictiveness of its abortion laws. In April, Oklahoma Governor Mary Fallin [official profile] signed into law [JURIST report] House Bill 1888 [materials], prohibiting abortions after 20 weeks. The law allows abortions past the 20-week mark only in certain extenuating circumstances where the mother faces death or serious injury. A doctor who performs an abortion in violation of the time limit would be subject to criminal prosecution for a felony, but the woman undergoing the procedure would not face a penalty. Last year, an Oklahoma state judge extended a temporary injunction [JURIST report] blocking enforcement of a law [HB 2780 text, RTF] that would require women seeking abortions to have an ultrasound and hear a description of the fetus. In May 2010, the Oklahoma Senate [official website] voted to override the veto of a bill [HB 3284 text, RTF] that would require women seeking an abortion to complete a questionnaire, answering questions such as marital status, reasons for seeking the abortion, and whether the pregnancy is the result of rape or incest.




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UN torture expert condemns solitary confinement for juveniles, mentally disabled
Maureen Cosgrove on October 19, 2011 12:15 PM ET

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[JURIST] Governments should ban solitary confinement [press release] for juveniles and prisoners with mental disabilities, a UN torture expert said Tuesday in a report to the UN General Assembly [official website]. UN Special Rapporteur on torture Juan Mendez [official website] told the assembly members that governments should impose solitary confinement only in exceptional circumstances and for short periods of time. Mendez reported that solitary confinement, which he defined as "any regime where an inmate is held in isolation from others (except guards) for at least twenty-two hours a day," is subject to widespread abuse, and described instances of extreme isolation practices in countries such as Kazakhstan, China and the US. Mendez emphasized that isolating prisoners, especially young or mentally disabled detainees, can have a particularly deleterious effect:
Solitary confinement is a harsh measure which is contrary to rehabilitation, the aim of the penitentiary system. ... Considering the severe mental pain or suffering solitary confinement may cause, it can amount to torture or cruel, inhuman or degrading treatment or punishment when used as a punishment, during pretrial detention, indefinitely or for a prolonged period, for persons with mental disabilities or juveniles.
Mendez enumerated recommendations and guidelines, including procedural safeguards and regular reviews of prison practices, for governments to minimize or altogether abolish the practice of solitary confinement.

Poor prison conditions have drawn criticism worldwide. In July, jailed Iranian journalist Isa Saharkhiz [Iran Press profile] urged [letter, DOC, in Persian] UN Human Rights Special Rapporteur Dr. Ahmad Shaheed to investigate prison conditions in Iran [JURIST report]. Saharkhiz alleged that the treatment of both political and general prisoners in Iran amounts to crimes against humanity [RFE/RL report]. At least 400 inmates at Pelican Bay State Prison [official website] in California initiated a hunger strike [JURIST report] in June in protest of solitary confinement. Inmates of Pelican Bay's Security Housing Unit (SHU), a long-term isolation ward where one-third of the prison's population is held in solitary confinement, are the instigators of the strike, and most of the strikers from other prisons are inmates in solitary confinement. The Washington Supreme Court ruled [opinion, PDF] 7-2 in January that holding death row inmates in solitary confinement indefinitely [JURIST report] is not an impermissible increase in the severity of punishment.




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EU Kosovo authorities sentence former rebel fighter on war crimes charges
Ashley Hileman on October 19, 2011 10:44 AM ET

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[JURIST] The European Rule of Law Mission in Kosovo (EULEX) [official website] on Friday sentenced [ruling, PDF] a former ethnic Albanian rebel fighter to five years in prison for crimes committed against civilians during the 1998-1999 war in Kosovo [BBC backgrounder; JURIST news archive]. Sali Rexhepi was charged with three counts of war crimes against the civilian population stemming from his membership and activity in the Kosovo Liberation Army (KLA) but was found guilty on only one of those charges. The court, consisting of three judges, found Rexhepi guilty of the second count in which it was alleged that he "tortured Witness N, a Kosovo Albanian citizen detained in the Cahan detention center by attempting to obtain information and confessions from him while repeatedly beating him with wooden sticks." The other counts alleged similar mistreatment of civilians. As a result of the court's decision, Rexhepi was sentenced to five years of imprisonment and will also be required to reimburse the costs of the criminal proceedings.

Earlier this month, the UN Office of the High Commissioner for Human Rights (OHCHR) [official website] called for Kosovo to institute an independent witness protection program [JURIST report]. Spokesperson Rupert Colville made the comment in reaction to the recent death of Agim Zogaj [B92 report], a major witness for the prosecution against senior Kosovo politician and parliamentarian Fatmir Limaj. Limaj, a former member of the KLA, is awaiting trial on charges of war crimes stemming from the 1998-99 Kosovo war with Serbia. Zogaj, known as Witness X, was a KLA member under Limaj's direct command during the alleged Klecka massacre [Centre for Peace in the Balkans backgrounder]. Although authorities are still investigating, Zogaj's death has been tentatively ruled a suicide. Since Zogaj's death, at least one witness has decided not to testify [B92 report]. EULEX has not commented on how severely this affects their case against Limaj and nine others, nor if it will delay the trial, which was expected to begin this month.




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Venezuela high court rules opposition candidate ineligible to run for president
Ashley Hileman on October 19, 2011 9:28 AM ET

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[JURIST] The Supreme Court of Venezuela [official website, in Spanish] ruled [judgment, in Spanish] Monday that presidential hopeful Leopoldo Lopez remains banned from running in next year's elections. Lopez, an opposition leader, is considered to be a threat [Bloomberg report] to current President Hugo Chavez [BBC profile; JURIST news archive]. As a result of corruption allegations, he was banned from public office through 2014 by the country's comptroller general. However, a ruling by the Inter-American Court of Human Rights (IACHR) [official website] restored Lopez's political right to run for office. Monday's decision by the high court has again revoked this right. In a statement [text, in Spanish], the court summarized its reasons for overturning the decision of the IACHR. Among these was its belief that, where the provisions of the American Convention on Human Rights [text]—which created the IACHR and defines the human rights which the ratifying States, including Venezuela, have agreed to respect and ensure—conflict with those in the respective country's constitution, that conflict must be resolved by the high court.

Last month, Chavez criticized the IACHR [JURIST report] for ruling in favor of Lopez. Chavez called the 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. This is not the first time the Venezuelan government and the IACHR have disagreed. 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 [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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US deported 400,000 illegal immigrants in 2011: DHS
Julia Zebley on October 19, 2011 8:27 AM ET

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[JURIST] The US Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) [official websites] announced on Tuesday that 396,906 illegal immigrants were deported in 2011 [press release], the largest number in the agencies' history. The report indicated that more than half of the deportees were convicted criminals. In August, the US drastically shifted immigration policy [JURIST report] by putting 300,000 illegal immigrants' cases up for review and temporarily halting their deportation. A new DHS guideline revealed that illegal immigrants would be targeted for deportation based on being a security risk or having committed criminal activity.

Despite being the province of the federal government, varying immigration laws have been proposed by several state legislatures, often resulting in lengthy court battles. Last week, the US Court of Appeals for the Eleventh Circuit [official website] temporarily blocked portions of a controversial Alabama immigration law [JURIST report], which would require immigration status checks of public school students and make it a misdemeanor for an illegal resident not to have immigration papers. A coalition of civil rights groups filed a federal lawsuit earlier that week in an attempt to block South Carolina's immigration law that allows police officers to check a suspect's immigration status [JURIST report] during a lawful stop, seizure, detention or arrest, and mandates that businesses participate in the federal E-Verify [official website] system to check the citizenship status of employees and job applicants. In August, 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 Arizona's controversial immigration law [SB 1070 materials; JURIST news archive], on which the South Carolina and Alabama legislation is modeled. Several other state legislatures have also acted recently to implement so-called "Arizona style" immigration laws.




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Federal judge rules US not required to reduce emissions to protect polar bears
Julia Zebley on October 19, 2011 7:32 AM ET

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[JURIST] A judge for the US District Court for the District of Columbia [official website] ruled [opinion, PDF] Monday that the US Fish and Wildlife Service (FWS) [official website] is not obligated to reduce green house gas emissions, a contributor to global warming [JURIST news archive], in order to protect polar bears [FWS backgrounder]. However, the court also found that the controversial Bush-era special 4(d) rule [text, PDF] in question violated the National Environmental Protection Act [official website] by not reviewing the potential harm to polar bears. Since the Obama administration rewrote the rule and reviewed it, the essential regulation still stands. The Center for Biological Diversity [advocacy website] released a statement [text] for the plaintiffs, a collective of environmental organizations:
The court's decision is bittersweet—it acknowledges the devastating impact of global warming on polar bears and requires further review of the 4(d) rule, but stops short of fully disallowing an exemption for greenhouse gases. We will redouble our efforts to protect the polar bear's Arctic Ocean habitat, and continue to press the Obama administration to use all available tools, including the Endangered Species Act, to address greenhouse emissions and the climate crisis.
Although polar bears are at an unendangered population now, a decision that was upheld in June [JURIST report], it is predicted that melting ice caps will kill 10,000 of the species [AP report].

In 2009, the Obama administration received criticism for preserving the special 4(d) rule. Secretary of the Interior Ken Salazar [official profile] had received special permission from Congress to amend the rule, which prevented the use of the Endangered Species Act (ESA) [text, PDF] to regulate greenhouse gas emissions. Polar bears are protected under the ESA, and environmentalists have argued that the release of greenhouse gases has contributed to global warming, which is destroying the polar bear's arctic habitat. The rule was put in place in December 2008 after the polar bear was listed as threatened on the endangered species list in May 2008. The Department of the Interior [official website] made the designation more than two years after the Center for Biological Diversity, Greenpeace and the Natural Resources Defense Council [advocacy websites] petitioned to protect the polar bear under the ESA. Shortly after that, then-Alaska governor Sarah Palin announced that her office would launch a court challenge [JURIST report] to the listing of the polar bear on the endangered species list. Palin argued that the designation of the polar bear as "threatened" would have a negative impact on development in Alaska.




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Iran human rights violations increasing: UN report
Alexandra Malatesta on October 19, 2011 7:00 AM ET

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[JURIST] UN Special Rapporteur on Iran Ahmed Shaheed said Monday that human rights violations in Iran are on the rise, as he presented a report [text, PDF] to the UN General Assembly [official website]. Citing an increase in persecutions among political activists and journalists, Shaheed criticized detention conditions [Reuters report], the torture and mistreatment of detainees and the significant administration of the death penalty to people under 18 years of age [FP report]. The report also criticizes "exorbitant bail requirements" for human rights defenders and religious practitioners, as well as the detention conditions of opposition leaders and their wives. In 2011, there have been more than 200 known executions performed, while the report alleges that at least 146 executions have been conducted in secret [PTI report] for crimes such as drug dealing. The scathing report comes on the heels of Shaheed's August request for Iran to comply with a mandate to abide by International human rights obligations [JURIST report]. Shaheed recognized some Iranian progress in its cooperation and implementations of recommendations for universal periodic review and observation, but reaffirmed his observations of the increasing trend of human rights violations:
[Shaheed] stresses the urgency for greater transparency from the Iranian authorities and closer engagement between the Islamic Republic of Iran and the international community in strengthening human rights safeguards for its citizens. ... [He] wishes to stress the importance of freedom of expression and assembly for a democratic, open society governed by the rule of law, and encourages the Government to refrain from repressing dissent. The Special Rapporteur would also like to underscore the importance of perpetuating a culture of tolerance, and urges the Government to prevent discrimination against women, as well religious and ethnic minorities, in all spheres of public life and services, and to protect their freedoms to freely associate and express themselves.
The special rapporteur requested that he be able to continue to visit Iran in order to work closely with authorities in addressing human rights abuses.

Iran has been heavily criticized for its alleged human rights abuses. Jailed Iranian journalist Isa Saharkhiz [Iran Press profile] in July urged [letter, DOC, in Persian] Shaheed to investigate prison conditions in Iran [JURIST report]. In May, rights groups decried [JURIST report] Iran's persecution of lawyers. In January, the International Campaign for Human Rights in Iran [official website] claimed that Iran is on an "execution binge" [JURIST report], killing one prisoner every eight hours. In January, prominent Iranian human rights lawyer Nasrin Sotoudeh was sentenced [JURIST report] to 11 years in prison. Sotoudeh was found guilty [Guardian report] of "acting against national security" and "making propaganda against the system" for which she will serve five and one years, respectively. She was the lawyer for Arash Rahmanipour, who was arrested for his role in the post-election protests on charges of moharebeh, or being an enemy of God. Rahmanipour was executed [JURIST report] in January 2010. Also in January, Iranian chief prosecutor Abbas Jafari-Dolatabadi delivered a speech at Tehran University indicating that he would prosecute opposition leaders [JURIST report] for political unrest that took place after the country's 2009 presidential election [JURIST news archive].




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Federal judge releases names on Washington domestic partnership petition
Sarah Posner on October 18, 2011 2:02 PM ET

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[JURIST] The Washington Office of the Secretary of State [official website] on Monday released [press release] the names of 137,500 people who signed petitions for Referendum 71 (R-71), opposing domestic partnerships, after a federal judge lifted the injunction and granted summary judgment [opinion, PDF] to defendants. In Doe #1 v. Reed, the judge held that the plaintiffs failed to demonstrate that a reasonable probability of threats, harassment or reprisals exists as to the signers of R-71, now nearly two years after the vote [JURIST report] on R-71 in Washington state. The court held that the state's important interest in disclosure under the Public Records Act (PRA) prevails under exacting scrutiny. The opinion states:
the Court finds that Doe's as-applied challenge cannot meet the threshold required to obtain an as-applied exemption to the PRA in this case. Doe's claim would also fail under the standards—if considered distinguishable from the applicable standards discussed above—articulated by a majority of the concurring Justices in the Supreme Court's opinion in Doe.
Secretary of State Sam Reed, who supported disclosure of petitions under the state's voter-approved PRA, was pleased with Judge Benjamin Settle's opinion.

In June 2010, the US Supreme Court [official website] ruled [JURIST report] 8-1 in Doe #1 v. Reed [Cornell LII backgrounder] that the First Amendment [text] does not bar a state from releasing identifying information about petitioner signers where there is a sufficiently compelling state interest. The case arose over an order to publish the names of those who signed a Washington state petition to overturn a state law [JURIST report] giving same-sex partners the same rights as married partners. The US Court of Appeals for the Ninth Circuit ruled [opinion, PDF] that the names should be released, but the Supreme Court issued a temporary stay [JURIST report] in October 2009.




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Cambodia genocide tribunal to begin Khmer Rouge trial in November
Sarah Posner on October 18, 2011 1:00 PM ET

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[JURIST] The UN-backed Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website; JURIST news archive] announced Tuesday that the trial [press release] of the surviving Khmer Rouge [JURIST news archive; BBC backgrounder] leaders will begin on Monday, November 21. The prosecution will have two days for opening statements followed by half a day of opening statements for the defense. The first segment of the trial is expected to conclude by December 16 for Christmas recess and will resume after the holiday break on January 9. The four defendants have been indicted [AP report] on charges of war crimes, crimes against humanity, genocide, religious persecution, homicide and torture. UN under-secretary general for legal affairs Patricia O'Brien will visit Cambodia [Bangkok Post report] this week to discuss concerns over political interference at the Khmer Rouge trial. Her visit was announced after last week's resignation of a German judge over statements made by the Cambodian government.

Last week, rights groups urged the UN [JURIST report] to assure that Cambodia will not interfere in a tribunal established by the UN charged with investigating the communist Khmer Rouge regime of the 1970s. The pressure for UN action results from the resignation of Siegfried Blunk [JURIST report], one of the judges for the ECCC, who blamed political interference for his decision. In September, the ECCC ordered the trials of four alleged Khmer Rouge leaders be split into a series of smaller trials [JURIST report]. The ECCC said that the separation of trials will allow the tribunal to deliberate more quickly in the case against the four elderly defendants.




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EU court forbids patents involving destruction of human embryos
Jennie Ryan on October 18, 2011 11:28 AM ET

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[JURIST] The European Court of Justice (ECJ) [official website] on Tuesday ruled [materials] that, under European law, a patent cannot be issued for any process which involves removing a stem cell [JURIST news archive] from and then destroying a human embryo. The case stems from a German patent filed by Oliver Brustle [University of Ulm profile] who invented a method for converting human embryonic stem cells into nerve cells. Greenpeace [advocacy website] first challenged Brustle's patent in 1997. A German court ruled the patent invalid, and, upon appeal by Brustle, the German Federal Court of Justice [official website] referred questions to the ECJ. The ECJ considered "the concept of 'uses of human embryos for industrial or commercial purposes'" within Article 6(2)(c) of Directive 98/44/EC [text] and held that:
An invention must be excluded from patentability where the application of the technical process for which the patent is filed necessitates the prior destruction of human embryos or their use as base material, even if the description of that process does not contain any reference to the use of human embryos. ... The exception to the non-patentability of uses of human embryos for industrial or commercial purposes concerns only inventions for therapeutic or diagnostic purposes which are applied to the human embryo and are useful to it.
The ruling limits the use in Europe of stem cells for the treatment of a range of diseases, and opponents of the ruling argue it will severely undercut medical research throughout the region.

Stem cell research is also a controversial topic in the US. In July, the US District Court for the District of Columbia [official website] dismissed an appeal [JURIST report] attempting to overturn April's decision that ended an injunction [JURIST reports] on federal funding of embryonic stem cell research. In 2009, President Barack Obama [official website] signed an executive order [JURIST report] which removed the previous administration's eight-year restriction on federal funding for human embryonic stem cell research. After a preliminary injunction on stem research was granted last year, the Obama administration appealed [JURIST report] the injunction, arguing that the ruling was overbroad, endangering an array of research across multiple programs and centers while only serving a very attenuated economic interest of the plaintiffs in the case. While the appeals process was underway, the court granted a long-term stay which allowed federal funding to continue [JURIST report] while the court reached a decision.




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Federal judge hears arguments on North Carolina abortion law
Alexandra Malatesta on October 18, 2011 10:48 AM ET

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[JURIST] A judge for the US District Court for the Middle District of North Carolina [official website] heard arguments Monday on the constitutionality of North Carolina's controversial new abortion law [HB 854 materials]. The lawsuit [complaint, PDF; JURIST report], brought by the American Civil Liberties Union (ACLU) [advocacy website] and other human rights groups, contests the provision requiring abortion providers to show women ultrasounds prior to performing the procedure. 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 argued during the two-and-a-half-hour hearing Monday that requiring doctors to subject women to images of the fetus and discuss the dimensions of the fetus and the presence of hands, feet and internal organs, constitute "extreme measures" that transgress constitutional regulations of abortions [AP report] and violate medical ethics. Special Deputy Attorney General Faison Hicks responded that the presentation of these scientific facts is lawful and promotes North Carolina's preference towards child birth within the scope of its recently enacted legislation. The judge, who inquired about a woman's ability to avoid seeing the images or hearing the information being offered by the doctor, has not yet reached a decision on the matter.

The bill became law in July when the North Carolina Senate and House of Representatives [JURIST reports] voted to override a veto 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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Israel high court rejects appeal against prisoner exchange
Jennie Ryan on October 18, 2011 10:29 AM ET

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[JURIST] The Israel Supreme Court [official website] on Monday rejected appeals to halt the release of Palestinian prisoners in exchange for a captured Israeli soldier. The petitions arguing against the release of more than 1,000 jailed Palestinians in exchange for captured Israeli soldier Gilad Shalit [BBC backgrounder] were filed by four families of the victims of the prisoners set to be released. The petitions were filed within the 48-hour window afforded to members of the public who wish to contest the prisoner exchange by the Ministry of Justice [official website]. The prisoner exchange deal came after a landmark agreement between Israel and Hamas [JURIST news archive] that was negotiated last month. The rejection of the appeals by the court cleared the way for prisoner exchange to begin. The prisoner exchange process is set to take place in two stages and will be completed sometime next year.

The release of Shalit has been a point of contention in the already tense relations between the Israeli government and Hamas. In April, Israel called for the UN to retract the Goldstone Report [JURIST report], which accused Israel of war crimes, following statements made by Richard Goldstone in a Washington Post op-ed [text] indicating that the fact finding mission underlying the report may have been flawed. The report accused Palestinian fighters of mistreating Shalit in violation of the Third Geneva Convention [text]. In June 2010, Human Rights Watch (HRW) [advocacy website] urged Hamas [JURIST report] authorities to allow Shalit to communicate with his family and receive visits from the International Committee of the Red Cross (ICRC) [official website]. In February 2008, a tentative agreement for the release of Shalit was hindered by disagreements [JURIST report] over the identity of the Palestinian prisoners to be released in exchange. Shalit was captured by Palestinian militants in 2006 during a raid on an Israel Defense Forces (IDF) [official website] post near the Kerem Shalom crossing in Israel.




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UN rights expert warns of potential Lebanon slavery
Drew Singer on October 18, 2011 8:32 AM ET

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[JURIST] UN Special Rapporteur on contemporary forms of slavery Gulnara Shahinian [official profile] on Monday said that the Lebanese government must create more legal protections [press release] for some 200,000 domestic workers in the country. Without more regulations, Shahinian said, some could be forced into domestic servitude and be subject to physical and psychological abuse. "I met with women who had been forced to work long hours without any remuneration or valid contract; physically and sexually abused; and morally harassed by constantly being insulted, humiliated and belittled," Shahinian said in the press release. He urged the government to ensure that the victims had access to justice.

Last year, UN Secretary-General Ban Ki-moon [official profile] called for a renewed international commitment to eradicate all forms of slavery [JURIST report]. Ban's comments took place on the International Day of Remembrance of Victims of Slavery and the Transatlantic Slave Trade [press release], which is held annually pursuant to General Assembly resolution A/62/L.32 [text, PDF]. In his statement, Ban said that the fight against slavery continues even though the practice may now take different forms than it has in the past. Also last year, Human Rights Watch (HRW) [advocacy website] urged Lebanon to improve its judicial system [JURIST report] by providing mechanisms to better protect the basic rights of domestic workers [press release] and more ardently prosecuting those who violate them. In June, JURIST guest columnist and head of Student Commentary Megan McKee argued that Lebanon must do more to protect the rights of migrant workers [JURIST Dateline report] in that country.




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Lebanon tribunal judge asks for trial in absentia
Drew Singer on October 18, 2011 7:37 AM ET

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[JURIST] A judge for the UN Special Tribunal for Lebanon (STL) [official website] on Monday asked [materials, in French] that the Trial Chamber initiate proceedings in absentia for four wanted suspects in the February 2005 assassination of former Lebanese prime minister Rafik al-Hariri [JURIST news archive]. Pre-trial Judge Daniel Fransen [official profile], in accordance with STL rules, waited 30 calendar days after public announcement of the indictment before making the formal request, the prescribed next step in the process. The Shi'ite Muslim group Hezbollah [JURIST news archive] has denied any responsibility [Reuters report] over the bombing, which killed Hariri and 21 other people in Beirut, and said it will not allow the suspects to be arrested.

The indictment was unsealed in August, and the STL president has made a public plea for the four men to turn themselves in [JURIST reports]. In 2007, the UN Security Council approved [UN News Centre report] a resolution to establish an ad hoc international tribunal to investigate and try suspects in the February 2005 assassination of Hariri. The move passed in a 10-0 vote, with China, Russia, Indonesia, Qatar and South Africa abstaining. The abstaining nations objected in part to the resolution's establishment under Chapter VII of the UN Charter [text], which allows for military enforcement if necessary. The controversial proposal, supported by then Lebanese prime minister Fuad Siniora but opposed [JURIST comment] by pro-Syrian former president Emile Lahoud [JURIST news archive], was a source of major disagreement in Lebanon's deeply sectarian political arena.




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Australia urged to investigate Sri Lanka war crimes
Jennie Ryan on October 17, 2011 1:18 PM ET

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[JURIST] A group of rights organizations and lawmakers on Monday called for Australia to investigate [press release, PDF] a top ranking official in the Sri Lankan High Commission [official website] in Canberra for war crimes violations allegedly committed by the Sri Lankan Navy during clashes with the Liberation Tigers of Tamil Eelam (LTTE) [JURIST news archive] in 2009. The call to investigate comes after the Australian International Commission of Jurists (ICJ) [official website] delivered a brief [The Age report] to the Australian Federal Police [official website] that they claim contains credible evidence of war crimes and crimes against humanity. The high commissioner, Thisara Samarasinghe [official profile], is a former Sri Lankan navy admiral and was a commander during the last months of the war when naval ships allegedly fired on civilians. Samarasinghe claims that his actions during the war were not in violation of the rules of conflict. Calls for investigation come days before Sri Lankan President Mahinda Rajapaksa [official profile] is scheduled to participate in the Commonwealth Heads of Government Meeting (CHOGM) [official website], a biannual meeting of the prime ministers and presidents of its member countries. The meeting will take place in Perth, Australia, where leaders are set to discuss both local and global issues and to develop related policies and initiatives.

Early this month, the Sri Lankan Special Envoy of the President on Human Rights, Mahinda Samarasinghe [official profile], announced that the Cabinet of Ministers has adopted the National Action Plan for the Protection and Promotion of Human Rights [JURIST report] after coming under international criticism for allegations of human rights violations. The five-year plan addresses eight areas [Daily Mirror report]: civil and political rights, economic, social, and cultural rights, children's rights, labor and migrant worker rights, and the prevention of torture. Last month, UN Secretary-General Ban Ki-Moon [official profile; JURIST news archive] sent a report [JURIST report] to the UN Human Rights Council (UNHRC) [official website] accusing Sri Lankan troops of killing tens of thousands of civilians during the 2009 civil war. In April, a UN panel of experts on Sri Lanka found credible allegations of war crimes [JURIST report] committed during the country's war with the LTTE, warranting 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, which described the UN panel as an infringement of Sri Lanka's sovereignty.




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France court orders block on 'copwatch' website
Jennie Ryan on October 17, 2011 11:01 AM ET

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[JURIST] The Tribunal de Grande Instance de Paris [official website, in French] on Friday ordered [judgment in PDF, in French] French Internet service providers to block access to Copwatch Nord Paris I-D-F, a website designed to allow civilians to post videos of alleged police misconduct. The decision was applauded by the police union, Alliance Police Nationale (APN) [union website, in French], which argued that the website incited violence against police. Jean-Claude Delage, secretary general of the APN, said that "[t]he judges have analyzed the situation perfectly—this site being a threat to the integrity of the police — and made the right decision." Opponents of Internet censorship were also quick to comment on the judgment. Jeremie Zimmermann, spokesman for La Quadrature du Net [advocacy website], a Paris-based net neutrality organization, called the order "an obvious will by the French government to control and censor citizens' new online public sphere." The site was ordered to be blocked immediately.

France does not have an equivalent to the US First Amendment [text], which prohibits the government from making any law "abridging the freedom of speech, or of the press." In August, the US Court of Appeals for the First Circuit [official website] ruled that there is a clearly-established First Amendment right [JURIST report] to film police officers performing their duties in a public space. The Center for Constitutional Rights [advocacy website] filed an amicus brief [PDF] in the case arguing that concerned individuals and cop-watch groups have a right to record the activity of police in the public. The case stems from a 2007 incident when police officers arrested Simon Gilk after he openly recorded three police officers arresting a suspect on the Boston Common.




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Supreme Court to hear immunity, discrimination, free speech cases
Maureen Cosgrove on October 17, 2011 10:41 AM ET

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[JURIST] The US Supreme Court [official website] granted certiorari [order list, PDF] Monday in four cases. In Kiobel v. Royal Dutch Petroleum [docket; cert. petition, PDF], the court will determine whether three oil companies are immune from US lawsuits under the Alien Tort Statute of 1789 [text] for torture and international law violations that took place overseas. In a similar case, Mohamad v. Rajoub [docket], the court will decide whether political organizations including the Palestinian Authority and the Palestine Liberation Organization could be immune from liability under the Torture Victims Protection Act of 1992 (TVPA) [text]. The plaintiffs in both cases allege human rights violations against an entity other than an individual person. The US Court of Appeals for the Second Circuit ruled that the oil companies were immune from liability [JURIST report], and the US Court of Appeals for the District of Columbia Circuit reached the same result [opinion, PDF] with respect to political organizations. The court will hear arguments for both Kiobel v. Royal Dutch Petroleum and Mohamad v. Rajoub in tandem.

The court will also hear arguments in Elgin v. Department of the Treasury [docket; cert. petition, PDF] to decide whether federal district courts have jurisdiction over constitutional claims for equitable relief brought by federal employees. The plaintiffs, former federal employees who had failed to register with the Selective Service between the ages of 18 and 26 pursuant to the Military Selective Service Act (MSSA) [text, PDF], claim that the MSSA discriminates based on sex because it imposes a lifetime bar on federal executive agency employment for violations carried out by a specific group of men. The men resigned or were fired from their federal posts for failure to register. The US Courts of Appeals for the Third and District of Columbia Circuits have held that federal employees do have valid claims under the Civil Service Reform Act [materials], while the First, Second and Tenth Circuits have precluded such jurisdiction.

Finally, in US v. Alvarez [docket; cert. petition, PDF], the court is asked to determine whether the Stolen Valor Act of 2005 (SVA) [text], legislation that makes it a federal crime to falsely assert that one has "received a decoration or medal authorized by Congress" for US armed forces, is a violation of the First Amendment [text] right to freedom of speech. Respondent Xavier Alvarez told members of a public water district board meeting that he was a retired US Marine, had been wounded many times and received the Congressional Medal of Honor, when in fact he had never served in the US military. Alvarez pleaded guilty and was ordered to pay a fine and serve three years of probation, but the US Court of Appeals for the Ninth Circuit reversed the conviction [opinion, PDF], finding the SVA facially unconstitutional [JURIST report]. The US Solicitor General argued [JURIST report] in his petition for certiorari that the appeals court erroneously applied the strict scrutiny standard to invalidate the SVA and overturn the conviction.




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Indian trust lawsuit leader Cobell dies at 65
Alexandra Malatesta on October 17, 2011 9:51 AM ET

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[JURIST] Elouise Cobell, who successfully led plaintiffs in the Indian trust class action lawsuit [class action website] against the US Department of the Interior (DOI) [official website], died from cancer Sunday at age 65. The resulting $3.4 billion settlement [agreement, PDF] for mismanaged Indian land royalties was the largest settlement in US government history. Cobell, who was an accountant and a member of the Blackfeet tribe [official website], grew up on a Montana reservation [WP article] without amenities such as electricity, telephone or running water. From a young age, she was told stories about the US government shortchanging Native Americans on land development leases for oil, gas and farming, rendering her tribe largely impoverished and under-employed. As the treasurer for the Montana tribe, Cobell finally decided to bring the lawsuit in 1996 as a result of the government's slow-moving disbursements for the acreage they developed. In a statement [text] regarding her passing, Secretary of the Interior Ken Salazar said:
I am deeply saddened by the loss of Elouise Cobell, who dedicated her life to the betterment of Indian people. She sought justice to address historical wrongs that had weighed on our nation’s conscience and was a significant force for change. ... As we pause to reflect on Elouise's life and achievements, let us be inspired to do better by the first Americans, and to uphold our nation's promise of justice and opportunity for all.
Cobell spent 15 years advancing the lawsuit and was diagnosed with cancer weeks before the settlement was approved.

Judge Thomas Hogan of the US District Court for the District of Columbia [official website] approved the $3.4 billion settlement [JURIST report] in June. At that time, President Barack Obama [official website] expressed hope [statement] that the settlement would improve the relationship between the US government and American Indians and promised to "engage in government-to-government consultations" with the tribes over the land consolidation part of the settlement. The settlement was ratified by both Houses of Congress and approved by the president before being given final approval by the district court in August. The settlement was agreed upon [JURIST report] in December 2009. The plaintiffs had rejected [JURIST report] a $7 billion settlement offer in 2007.




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Malaysia opposition leader Anwar's defense rests in sodomy trial
Alexandra Malatesta on October 17, 2011 9:36 AM ET

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[JURIST] Defense counsel for Malaysian opposition leader and former deputy prime minister Anwar Ibrahim [official profile; JURIST news archive] rested its case on Monday in Anwar's sodomy trial, for which a verdict is expected by the end of the year. The prosecutor plans to call four witnesses to refute testimony of one of the defense experts, an orthopedic surgeon, who testified [AP report] that Anwar's back condition would prevent him from engaging in the sexual act. Under Malaysian law, sodomy is punishable by 20 years in prison regardless of consent. This is the second sodomy case launched against Anwar, who has consistently argued that the allegations are a politically motivated attempt to silence the opposition. The continuance of the trial could potentially strengthen Prime Minister Najib Razak's majority government. A general election is expected to be called this year even though one is not due until 2013, causing opposition support to fear that a guilty verdict might interfere with the national polls.

A Malaysian court ruled [JURIST report] in May that prosecutors had enough evidence to pursue a sodomy case against Anwar. The opposite leader was arrested in July 2008 after he filed a lawsuit against his accuser [JURIST reports] in late June. Last December, Anwar filed a complaint [JURIST report] in a Malaysian court over a WikiLeaks [website] cable published by Australian newspapers stating he had engaged in sodomy. The leaked US diplomatic cable claimed Australia's Office of National Assessments [official website] had concluded, in agreement with Singapore's Intelligence Agency, that the sodomy charges against Anwar were the result of a set-up, but that he was in fact guilty of committing the acts. Last year, the Federal Court of Malaysia [official website], the country's highest court, rejected Anwar's 2006 defamation suit [JURIST report] against against former prime minister Mahathir Mohamad [BBC profile] for allegedly suggesting at a human rights conference that Anwar was unfit for office because of his supposed homosexuality. Anwar was Malaysia's Deputy Prime Minister under former Mahathir Mohamad until he was fired in 1998 following earlier sodomy charges of which he was initially convicted but later acquitted. He reentered Malaysian politics following the expiration of a 10-year ban [JURIST report] against him for unrelated corruption charges.




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European Commission chief to propose criminal penalties for finacial sector violations
Dan Taglioli on October 16, 2011 4:39 PM ET

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[JURIST] The head of the European Commission (EC) [official website] Sunday announced plans [Le Parisien report, in French] to propose criminal sanctions for wrong-doers in the financial sector. In an interview-format article published over the weekend, EC President Jose Manuel Barroso [official website] stated that during the coming week he will propose to introduce into European law for the first time the recognition of individual criminal liability [AFP report] for financial players who break European regulations. An English translation of his statement reads:
I will propose Thursday that individual criminal responsibility of financial actors is finally recognized in European law. ... We have seen abusive behavior in the markets. Some have caused the current crisis. We will regulate these practices! Those who violate will incur penalties. It will be a first in European legislation and a strong signal.
Barroso's proposals would oblige EU nations to amend their statutory framework to include criminal penalties for financial regulation violations.

The European debt crisis [BBC backgrounder] has led to calls for tougher regulation of financial sectors, especially in the less transparent markets for collateralized debt obligations and other exotic securities that sparked the worldwide financial crisis. Less solvent nations such as Greece and Spain have been forced to pass austerity measures and seek funds from more stable EU neighbors like Germany. JURIST Guest Columnist Larry Eaker of the American University of Paris recently wrote [JURIST op-ed] that the debt crisis in the EU has made it necessary to examine whether it is legally possible for a eurozone nation to leave the EU and abandon the joint currency altogether. Last month a German high court rejected challenges [JURIST report] brought against the constitutionality of EU rescue package and financial aid package given to Greece. In August Spain agreed to amend its constitution [JURIST report] to limit its national deficit. Italy and Spain have succeeded in lowering borrowing costs by taking advantage of a European bond-buying [Houston Chronicle report] program, and Sweden has resolved to protect its banking and financial institutions [The Local report] from effects of the debt crisis by increasing funds for more financial inspections and deposit guarantees. In June, Greece, proposed a constitutional referendum [JURIST report] aimed at eliminating the systemic governmental inefficiency and waste that led to the crisis that has wracked the country.




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Egypt military council issues ban on discrimination
Dan Taglioli on October 16, 2011 3:03 PM ET

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[JURIST] The Egyptian Supreme Council of the Armed Forces (SCAF) [NYT backgrounder] on Saturday issued a decree banning discrimination on the basis of race, gender or religion. The SCAF article, Law Decree No. 125 / 2011, amended Criminal Law provisions first passed in 1937. The new article imposes heavy penalties [Egyptian Gazette article], amounting to fines of up to EGP 100,000 (USD $16,778) and a prison sentence of up to three months, on civil servants who discriminate against citizens either as individuals or as a sect in ways that threaten social justice or equal opportunity or disturb the public peace. Ordinary citizens who commit the same crimes will be fined up to EGP 50,000 (USD $5,033) and sentenced to up to three months in jail. The introduction of the article [Reuters report] comes in response to public calls for tougher legal measures against all forms of discrimination, and the measure follows last Sunday's clashes between troops and protesters, many of whom were Coptic Christians. Twenty-five people were killed in the fighting, representing the worst street violence since the fall of former president Hosni Mubarak [Al Jezeera profile] in February 11. Many have accused the ruling military of using tactics reminiscent of Mubarak's police force against the protesters in last week's violence.

Earlier this month a similar SCAF amendment altered election rules to ban the use of religious slogans [JURIST report] in campaigning. The article came ahead of the upcoming November elections and is expected to have an immediate effect on the Muslim Brotherhood [party website; JURIST news archive] whose traditional slogan "Islam is the solution" was banned under the new electoral guidelines. However, two days later an Egyptian court overturned a ban [JURIST report] that prohibited presidential hopeful Ayman Nour [BBC profile] from forming the Islamic-based political party Al-Gama'a al-Islamiya [party website]. In March, Supreme Council of the Armed Forces announced that it would lift the state of emergency [JURIST report] before parliamentary polls were to be held. The election announcement came a week after an overwhelming majority of Egyptians voted to approve several constitutional amendments [JURIST report] in a national referendum. The majority approval is considered by some to be a milestone [JURIST comment] for Egypt during its transition to a democratic society following the national uprising [JURIST news archive] against Mubarak.




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ICC prosecutor singles out individuals for Ivory Coast war crimes probe
Ashley Hileman on October 16, 2011 11:41 AM ET

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[JURIST] International Criminal Court [ICC] [official website] Chief Prosecutor Luis Moreno-Ocampo [official profile] said Saturday that the court will launch investigations specifically aimed at three to six individuals for their alleged involvement in post-election violence [JURIST news archive] following last November's elections in the Ivory Coast [BBC backgrounder]. Ocampo arrived in the country [JURIST report] on Saturday after receiving permission from both ICC judges and Justice Minister Jeannot Ahoussou Kouadio [JURIST reports]. While the names of the individuals under investigation will not yet be released to the public, Ocampo plans to focus on the "most egregious and the most responsible" [AP report]. The Ivory Coast is not a member of ICC but through its express permission has accepted the court's jurisdiction over the case and has pledged to cooperate in the investigation.

As a part of the investigation, Ocampo plans to meet with the Truth, Dialogue and Reconciliation Commission, which was launched by the Ivory Coast [JURIST report] last month. The country hopes the commission will help to resolve conflicts stemming from the post-election violence. 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.




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US lawmakers defend DOMA in court filing
Ashley Hileman on October 16, 2011 10:31 AM ET

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[JURIST] Members of the House of Representatives Bipartisan Legal Advisory Group defended the Defense of Marriage Act (DOMA) [text; JURIST news archive] in a filing [text, PDF] on Friday in the US District Court for the Northern District of California [official website]. In the filing, the three Republican members of the group, including House Speaker John Boehner (R-OH) [official website], responded to a motion for summary judgment by plaintiff Karen Golinski, whose request to extend her health insurance benefits to her wife was denied. Golinski seeks a declaration that DOMA is unconstitutional [Bloomberg report]. The group contends that Golinski's claim fails because DOMA "easily passes the rational basis test," which would apply because "sexual orientation is not a suspect or quasi-suspect class under the traditional factors used to determine such classes" including immutability and political powerlessness:
Given that the Ninth Circuit has just finished wrestling with the consequences of the repeal of "Don't Ask Don't Tell," Plaintiff should not be heard to contend that such issues cannot be rectified through the legislative process. Moreover, Plaintiff appears oblivious to the irony of maintaining that homosexuals have limited political power in a case in which her position is supported by the Department of Justice at the insistence of the President. In light of the Department's longstanding duty to defend the constitutionality of federal statutes, its decision to decline to defend the constitutionality of DOMA—notwithstanding its acknowledgment that reasonable arguments can be advanced in defense of Section 3, that it survives rational basis review, and that eleven Circuit Courts of Appeal, including the Ninth, disagree with its conclusion that heightened scrutiny applies—and instead adopt the very position advocated by Plaintiff, is particularly telling.
Earlier this month, at the fifteenth annual dinner hosted by equal rights group Human Rights Campaign (HRC) [advocacy website], President Barack Obama [official website] told gay rights activists that he would continue to fight for the repeal [JURIST report] DOMA.

Even though the Obama administration has stopped defending the constitutionality of DOMA [JURIST report], benefits continue to be denied. Just this week, a disabled Navy veteran filed a notice of appeal [JURIST report] with the Court of Appeals for Veterans Claims [official website] for denying her partner a share of her disability benefits under DOMA. Carmen Cardona filed for veterans' spousal benefits last year but was denied. The Department of Veterans Affairs [official website] reportedly told her she could not receive benefits because her spouse was a woman, which is not a recognized marriage under federal law. The Department has declined to comment [Fox News report] on the potential litigation. In February, congressional Democrats introduced the Respect for Marriage Act [text], which was intended to repeal DOMA [JURIST report], but it has not yet passed.




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US veteran challenges benefits claim denied under DOMA
Julia Zebley on October 15, 2011 5:31 PM ET

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[JURIST] A disabled Navy veteran filed a notice of appeal [CT Post report] Thursday with the Court of Appeals for Veterans Claims [official website] for denying her partner a share of her disability benefits under the Defense of Marriage Act (DOMA) [text; JURIST news archive]. Carmen Cardona filed for veterans' spousal benefits last year but was denied. The Department of Veterans Affairs [official website] reportedly told her she could not receive benefits because her spouse was a woman, which is not a recognized marriage under federal law. The Department has declined to comment [Fox News report] on the potential litigation. Although in February, the US Department of Justice (DOJ) [official website] announced that it would no longer defend the constitutionality [JURIST report] of DOMA in court cases challenging the provision, there is no obligation on federal agencies not to enforce the law.

US President Barack Obama [official website] told gay rights activists in October that he would continue to fight for the repeal [JURIST report] of DOMA, reinforcing that the DOJ is not defending its constitutionality. However, House Speaker John Boehner (R-OH) [official website] announced that he was launching a legal advisory group to defend [JURIST report] DOMA in March, stating "[t]he constitutionality of this law should be determined by the courts, not by the president unilaterally, and this action by the House will ensure the matter is addressed in a manner consistent with our Constitution." In February, congressional Democrats introduced the Respect for Marriage Act [text], which was intended to repeal DOMA [JURIST report], but it has not yet passed. A July 2010 ruling [JURIST report] by the US District Court for the District of Massachusetts found that Section 3 of DOMA violates both the Equal Protection Clause of the Fifth Amendment and State Sovereignty under the Tenth Amendment [text]. Currently DOMA allows other states to ignore those recognized same-sex marriages, and prevents same-sex couples from receiving federal benefits available to married couples.




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Federal judge denies FOIA request for Kagan involvement in health care reform
Julia Zebley on October 15, 2011 1:19 PM ET

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[JURIST] A judge for the US District Court for the District of Columbia [official website] on Friday rejected [opinion text, PDF] a request [complaint, PDF] by Judicial Watch and the Media Research Center (MRC) [advocacy websites] for documents pertaining to Supreme Court Justice Elena Kagan's involvement with the Patient Protection and Affordable Care Act (PPACA) [HR 3590 text; JURIST Feature] as solicitor general. A Freedom of Information Act (FOIA) [5 USC § 552] request for documents disclosing Kagan's involvement in PPACA was already fulfilled [text, PDF] to a division of the MRC, CNSNews [official website] in May 2010. Various agency documents detailing Kagan's involvement in health care reform were released, which amounted to 45 out of a potential 1,400 pages matching the initial request. This included then-solicitor general Kagan assigning a deputy, Neal Katyal, to defend PPACA in court. Judicial Watch and MRC then requested further records and correspondence, which the Department of Justice (DOJ) [official website] did not provide due to exemptions and declaring many of the requested documents as non-agency records. Judge Huvelle agreed, rejecting the groups' requests on several grounds, finding the DOJ's first search adequate, and declaring that the e-mails the groups sought were, "not relied upon by the [Office of Solicitor General] in carrying out its business, but rather was used for a purely personal objective." Huvelle also upheld the attorney work-product privilege of FOIA to allow the government to withhold documents that "discussed legal defense of the forthcoming health care legislation in response to an anticipated court challenge." A spokesperson for Judicial Watch said he is unsure if they will pursue further litigation [BLT report] but said the judgment called into question parts of Kagan's senate testimony.

It is becoming increasingly likely that the US Supreme Court [official website] will review the health care law this term. Liberty University [official website] last week petitioned [JURIST report] the court to review its case against PPACA, making it the sixth writ of certiorari on the issue. The DOJ asked the high court to rule last month [JURIST report], appealing an August ruling by the US Court of Appeals for the Eleventh Circuit [official website], which struck down the individual mandate [JURIST report] as unconstitutional, creating a circuit split. Virginia Attorney General Ken Cuccinelli [official website] has also asked the Supreme Court to weigh in [JURIST report] on PPACA, appealing a Fourth Circuit ruling. 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 [advocacy website]. Also in August, 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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ICC prosecutor visits Ivory Coast to probe war crime allegations
Jaclyn Belczyk on October 15, 2011 10:20 AM ET

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[JURIST] International Criminal Court [ICC] [official website] Chief Prosecutor Luis Moreno-Ocampo [official profile] arrived in the Ivory Coast [BBC backgrounder] Saturday to investigate allegations of war crimes committed during post-election violence [JURIST news archive] following last November's elections. Thousands were allegedly killed and hundreds detained and raped in the months-long struggle between ousted leader Laurent Gbagbo and rival President Alassane Ouattara [BBC profiles] after Gbagbo refused to give up power. The ICC announced earlier this month that it would initiate a formal investigation [JURIST report], and Ocampo has been asked to report any information collected pertaining to the allegations between the years 2002-2010. Before his trip, Ocampo said [statement]:
I am grateful to President Ouattara for extending the invitation for me to conduct an official visit to Cote d'Ivoire. We will also meet members of the Opposition. We will meet with victims, and listen to their views and concerns. We believe it is critically important to meet with the Truth, Dialogue and Reconciliation Commission, which has a crucial mandate to contribute to the prevention of new crimes, the establishment of individual responsibilities and the reconciliation of all Ivorians.
The Ivory Coast probe marks Ocampo's seventh inquiry into African conflicts and the first investigation into a state not party to the Rome Statute [official website] of the ICC.

Ocampo officially requested permission [JURIST report] from ICC judges in June to begin the investigation into the Ivory Coast after determining that war crimes and crimes against humanity have been committed. The Ivory Coast announced earlier in that month that it would establish its own commission [JURIST report] to investigate alleged crimes committed as a result of the disputed presidential elections. 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 Gbagbo in June. In April, Human Rights Watch [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 pro-Ouattara forces, known as the Republican Forces of the Ivory Coast, killed more than 100 civilians, raped at least 20 supporters of Gbagbo and burned at least 10 villages in March. Also in April, the International Committee of the Red Cross (ICRC) [official website] reported the deaths of at least 800 civilians [JURIST report] in the Ivory Coast town of Duekoue as a result of inter-communal violence.




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Ukraine ex-PM Tymoshenko facing new charges
Michael Haggerson on October 14, 2011 3:21 PM ET

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[JURIST] The Security Service of Ukraine [official website] on Thursday brought new corruption charges [press release] against former prime minister Yulia Tymoshenko [personal website; JURIST news archive], just days after she was sentenced [JURIST report] to seven years in prison on charges of abuse of power and corruption. Prosecutors allege that Tymoshenko embezzled USD $400 million of debt from her company United Energy Systems of Ukraine onto the state. Amnesty International (AI) [advocacy website] has called the prosecution of Tymoshenko politically motivated and based on charges that are not internationally recognizable offenses [press release]. The US and several European countries have echoed AI's statements and have called the prosecution the criminalization of normal political decision-making [BBC report]. Tymoshenko repeated her hope [press release] that the European Court of Human Rights (ECHR) [official website] would overturn Tuesday's guilty verdict and stated her intention to appeal [press release]. In June, Tymoshenko filed a complaint [JURIST report] with the ECHR 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 week, the Ukrainian parliament [official website] rejected four amendments to the country's Criminal Code [materials] that sought to decriminalize Article 365, which stipulates jail time for abuse of office [JURIST report]. Tymoshenko's trial resumed at the end of September after a two-week recess [JURIST reports]. In August, 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. 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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Taiwan high court sentences ex-president Chen to additional prison time
Hillary Stemple on October 14, 2011 2:49 PM ET

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[JURIST] The Taiwan High Court [official website, in Chinese] on Thursday sentenced [press release, in Chinese] former Taiwanese president Chen Shui-bian [BBC profile] to 18 years in prison after finding him guilty of financial fraud, overturning a lower court ruling. Members of Chen's family, including his wife, were also found guilty on corruption charges [ANN report] and given prison sentences ranging from six months to 11 years. A lower court originally acquitted Chen [JURIST report] and 21 other defendants of the charges last November, citing lack of evidence supporting the allegations, and specifically noting that under the country's Anti-Corruption Act, the president does not control bank mergers [Taipei Times report] and as such he could not take bribes to influence them. Chen and his wife were accused of taking $20 million in bribes from banks and financial institutions [JURIST report] that sought to protect themselves during the implementation of Chen's financial reform program. A spokesperson for the court noted that Chen's total prison time cannot exceed 30 years [NYT report]. The defendants, including Chen, are able to appeal [Taiwan News report] the court's ruling.

Chen was found guilty on corruption charges and sentenced to life in prison in September 2009, but the sentence was reduced to 20 years [JURIST reports] in June 2010 after the high court determined he had not embezzled as much money as previously thought. Chen was also indicted [JURIST report] in 2009 on additional corruption charges relating to funds he received while traveling abroad as president. Chen was initially detained in November 2008, and was formally indicted [JURIST report] a month later. In January 2009, he unsuccessfully appealed [JURIST report] his pretrial detention, after staging three hunger strikes in protest. Chen maintains that current Taiwanese President Ma Ying-jeou [official website, in Chinese] is using Chen's trial to distance himself from Chen's anti-China views. Chen served as president of Taiwan from 2000-2008.




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UN rights chief calls for international protection of Syria civilians
Hillary Stemple on October 14, 2011 2:18 PM ET

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[JURIST] UN High Commissioner for Human Rights Navi Pillay [official profile] on Friday urged [statement] the international community to take steps to protect civilian lives in Syria, where more than 3,000 civilians have been killed since protests against the government began in March. Pillay stated that the Syrian government has failed to protect its population and has ignored calls from the international community to cooperate with international investigations into possible human rights violations. According to a report adopted Tuesday by the UN Human Rights Council (UNHCR) [official website], Syria has rejected calls from several nations [JURIST report] to join the International Criminal Court (ICC) [official website]. Pillay cited repeated reports of snipers firing from rooftops and the use of live ammunition in the shelling of residential neighborhoods as examples of the excessive force being used against peaceful protesters. According to Pillay:
The result has been a devastatingly remorseless toll of human lives. The number of people killed since the violence started in March has now exceeded 3,000, including at least 187 children. More than 100 people have been reported killed in the last 10 days alone. In addition, thousands have been arrested, detained, forcibly disappeared and tortured. Family members inside and outside the country have been targeted for harassment, intimidation, threats and beatings. As more members of the military refuse to attack civilians and change sides, the crisis is already showing worrying signs of descending into an armed struggle.
Pillay also indicated that protesters' family members, both inside and outside Syria, are being threatened, harassed and intimidated. She expressed concern that the struggle against the protesters could dissolve into an armed struggle. Pillay called on the international community to speak with one voice in order to protect the Syrian people and prevent the country from falling into civil-war.

Last month, the UNHRC voted 33-4 to adopt a resolution [JURIST report] ordering an investigation [press release] into crimes against humanity in Syria and urging the Syrian government once again to halt its violent crackdown against peaceful protesters. An emergency meeting was held in response to a plea [JURIST report] from Pillay to refer Syria to the ICC for an investigation into the violent suppression of anti-government protests. Many steps have been taken to try and halt the violence in Syria. In August, 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. In June, the UN Office of the High Commissioner for Human Rights (OHCHR) published a preliminary report [JURIST report] describing human rights violations in Syria and calling for an investigation into government-authorized abuses related to pro-democracy protests that began earlier this year. In April, Pillay urged Syria to immediately halt the killings [JURIST report] and violence against civilian protesters in response to the fatal shootings of peaceful anti-government protesters.




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Federal appeals court blocks Alabama immigration law
Jaclyn Belczyk on October 14, 2011 1:30 PM ET

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[JURIST] The US Court of Appeals for the Eleventh Circuit [official website] on Friday temporarily blocked [order, PDF] portions of a controversial Alabama immigration law [HB 56 text]. The ruling came in response to a motion filed last week [JURIST report] by the US Department of Justice (DOJ) and a coalition of immigrants rights groups after a judge for the US District Court for the Northern District of Alabama [official websites] twice refused to block the law [JURIST report] from taking effect. The appeals court granted the DOJ's motion to block Section 28, which requires immigration status checks of public school students, and Section 10, which makes it a misdemeanor for an illegal resident not to have immigration papers. The appeals court refused to block provisions that require police to check the immigration status of suspected illegal aliens, bar state courts from enforcing contracts involving illegal immigrants and make it a felony for illegal immigrants to enter into a "business transaction," including applying for a driver's license. The injunction will remain in effect until the Eleventh Circuit hears oral arguments and issues a ruling on the constitutional questions presented by the case.

The state of Alabama responded [JURIST report] to the DOJ's motion earlier this week, arguing that the law is not preempted by federal law and that it is necessary to address the problem of illegal immigrants "taking jobs away from United States citizens and authorized aliens who desperately want to work in these hard economic times." The DOJ, joined by several rights groups, appeared before the district court in August to make arguments against the law's enactment, at which point Chief Justice Sharon Lovelace Blackburn issued a temporary injunction [JURIST reports] to forestall enactment of the challenged provisions. From the time that the legislation was signed into law in June, 16 countries filed briefs [JURIST reports] 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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UN expert supports Mexico right to food constitutional reform
Michael Haggerson on October 14, 2011 1:17 PM ET

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[JURIST] UN Special Rapporteur on the Right to Food [official website], Olivier De Schutter [official profile], announced on Thursday that he supports a Mexican constitutional reform which recognizes the right to food [press release]. The reform targets articles 4 and 27 of the Mexican constitution [text, PDF]. Article 4 guarantees that "[n]o one may be deprived of the fruits of his labor except by judicial decision." Article 27 provides the government the "right to regulate the utilization of natural resources" distribute resources equitably for the public good. Schutter observed that Mexico's progress towards realizing the right to food has been "uneven" [report]. Although the percent of children who are considered underweight in Mexico decreased from 14.2 percent in 1998 to 5 percent in 2006, the overall number of people living in "food poverty" increased 4.4 percent from 2006 to 2008.

Schutter urged governments to reform their legal systems [JURIST report] to fight hunger and promote the right to food in May 2010. UN Secretary-General Ban Ki-moon [official website] has historically called for an increased effort to uphold the "fundamental human right" to food [JURIST report] for people around the world who suffer from chronic hunger. The right to adequate food is recognized in Articles 24(2)(c) and 27(3) of the Convention on the Rights of the Child, Article 12(2) of the Convention on the Elimination of All Forms of Discrimination against Women, and Articles 25(f) and 28(1) of the Convention on the Rights of Persons with Disabilities [texts]. Article 25 of the Universal Declaration on Human Rights [text], adopted by the UN in 1948, states that "[e]veryone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food."




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Myanmar urged to release remaining political prisoners
Sarah Posner on October 14, 2011 11:01 AM ET

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[JURIST] UN Secretary-General Ban Ki-moon [official profile] on Thursday welcomed [statement] the release of approximately 200 political prisoners by Myanmar's president, while urging the government to release all political prisoners [UN News Centre report] in accordance with the rule of law. Ban Ki-moon also acknowledged the dialogue between the government and pro-democratic leader Aung San Suu Kyi [BBC profile; JURIST news archive], as well as talks between the authorities and ethnic groups in an effort to bring stability and address the challenges currently facing the country. Some of the prisoners released have been addressed by the Special Rapporteur in the past. The Assistance Association for Political Prisoners (Burma) (AAPPB) [advocacy website] on Thursday claimed that Myanmar's announcement is merely an attempt to appease the international community [press release]. Despite an announcement on October 11 that Myanmar would release 6,359 prisoners, no further information about the actual number of prisoners that will be released has been publicized. According to the AAPPB, the timing of the Myanmar government's announcement coincides with other concerns, signifying that the release of prisoners is just an attempt by the government to ease international tension. AAPPB said that the prisoner release is not satisfactory

On Tuesday, US Assistant Secretary of State Kurt Campbell indicated that Myanmar's civilian-led government was planning dramatic changes including releasing hundreds of political prisoners [JURIST report] and consequential dialogue with Suu Kyi. Myanmar has sought to improve its international reputation following a transfer of power from a military regime to a civil system in March after holding its first elections in 20 years. Last month, Myanmar's government formed the Myanmar National Human Rights Commission (MNHRC) [JURIST report] to promote and safeguard the country's constitutional rights. In August, UN Special Rapporteur on the situation of human rights in Myanmar Tomas Ojea Quintana urged the government of Myanmar to investigate human rights abuses [JURIST report] and improve its rights record. In May, Myanmar began releasing as many as 15,000 prisoners [JURIST report] as part of an amnesty program after a visit from a special envoy from the UN secretary-general, but rights groups claim the government has not gone far enough.




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Rights group urges Malawi to arrest Sudan president
Sarah Posner on October 14, 2011 9:15 AM ET

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[JURIST] Amnesty International (AI) [advocacy website] urged Malawi on Friday to arrest [press release] Sudanese President Omar al-Bashir [case materials; JURIST news archive] during his visit to the country on Saturday and surrender him to the International Criminal Court (ICC) [official website] for prosecution. Al-Bashir is expected to attend a trade summit in Malawi this weekend, despite two international warrants out for his arrest on charges of genocide, war crimes and crimes against humanity in connection with the Darfur conflict [BBC backgrounder]. Malawi has refused calls from western powers to arrest al-Bashir, as President Bingu wa Mutharika indicated his belief that leaders should only be tried domestically and not by the ICC. However, Mutharika's failure to arrest al-Bashir would constitute a violation of Malawi's obligations under the Rome Statute. Despite an arrest warrant issued in March 2009 and another one in July 2010, al-Bashir continues to avoid trial by the ICC.

Al-Bashir announced on Wednesday that Sudan will adopt an Islamic constitution [JURIST report]. Al-Bashir remains an extremely controversial figure in international politics for his actions during the Darfur conflict. In June, AI urged Malaysia to withdraw an invitation for al-Bashir to participate in an event there and to arrest him if he travels to the country [JURIST report]. Also in June, ICC Chief Prosecutor Luis Moreno Ocampo issued a statement claiming that al-Bashir has continued to commit crimes against humanity [JURIST report] in Darfur. In May, the ICC urged Djibouti to arrest al-Bashir [JURIST report]. In October, the ICC requested that Kenya arrest al-Bashir [JURIST report] while he visited that year for a second time. Previously, al-Bashir had visited Kenya for the signing of the country's new constitution [JURIST report].




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Rights groups urge Canada to arrest ex-US president Bush ahead of visit
John Paul Putney on October 14, 2011 8:44 AM ET

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[JURIST] Human Rights Watch (HRW) and Amnesty International (AI) [advocacy websites] on Wednesday urged the Canadian government to investigate [HRW press release] and arrest [AI press release] former US president George W. Bush [JURIST news archive] for his role in torture, ahead of his travel to an economic summit in British Colombia next week. AI's submission [text, PDF] to Canadian authorities emphasizes Bush's authorization of "enhanced interrogation techniques" [Business Review Canada report] including waterboarding, which Bush has admitted. Pressing obligations under international law, HRW urged:
There is overwhelming evidence that Bush and other senior administration officials authorized and implemented a regime of torture and ill-treatment of hundreds of detainees in US custody, including at least two Canadian citizens. Under the Convention against Torture, Canada is obligated to prosecute individuals suspected of committing torture found in its territory if other countries have failed to do so. The Obama administration has failed to investigate allegations of involvement in torture by Bush or other senior administration officials, and none are expected.
The Canadian government has rejected [Reuters report] AI's call to arrest the former head of state calling it a cheap stunt.

Calls for the investigation or arrest of former president Bush have largely been rejected. In February, the Center for Constitutional Rights (CCR) and the European Center for Human Rights (ECCHR) [advocacy websites] urged the signatory states of the UN Convention Against Torture (CAT) [text] to pursue criminal charges against the former president [JURIST report]. The call came as the rights groups announced that two criminal complaints [text, PDF] were to be filed in Switzerland against Bush before he canceled his trip to the country. Calls to investigate the criminal culpability of Bush and officials in his administration have been consistently rejected 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 [18 USC § 2340A]. Also citing his memoir, the ACLU argued that the use of waterboarding has historically been prosecuted as a crime in the US. The letter also argued that failure to investigate Bush would harm the US's ability to advocate for human rights in other countries. Bush's secretary of defense Donald Rumsfeld [JURIST news archive] has also faced possible criminal charges in Europe, 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].




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Hedge fund executive Rajaratnam sentenced to 11 years for insider trading
John Paul Putney on October 14, 2011 7:45 AM ET

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[JURIST] A judge in the US District Court for the Southern District of New York [official website] on Thursday sentenced [press release, PDF] former Galleon Group hedge fund executive Raj Rajaratnam [JURIST news archive] to 11 years in prison, fined him $10 million and ordered he forfeit an additional $53.8 million. The 11-year sentence was significantly lower than the 24 1/2-year sentence requested by prosecutors [Bloomberg report] and less than the 19 1/2-year minimum [Reuters report] indicated by the non-obligatory federal sentencing guidelines. Even so, Rajaratnam's sentence is the longest term ever imposed for insider trading [Bloomberg report] and is part of a trend of tougher sentences for white-collar criminals [NYT report] precipitated in part by the federal sentencing guidelines which Congress passed in 1987. Calling his crime an assault on free markets and a virus in business culture in need of eradication, Judge Richard Holwell cited Rajaratnam's charitable financial help for victims of the tsunami in Sri Lanka, the earthquakes in Pakistan and the 9/11 attacks, as well as his impeding kidney failure due to advanced Type II diabetes as reasons for the comparatively lenient sentence.

Rajaratnam was convicted of 14 counts of insider trading [JURIST report] in May in the largest hedge fund insider trading case in US history. Several other defendants have pleaded guilty in connection with the case. Danielle Chiesi pleaded guilty [JURIST report] in January. Former IBM senior vice president Robert Moffat was sentenced to six months in prison in September and ordered him to pay a $50,000 fine for his role in the scheme after pleading guilty [JURIST reports] in March 2010. Former Intel Capital executive Rajiv Goel pleaded guilty [JURIST report] to insider trading charges in February 2010. Rajaratnam, Chiesi, Goel and Moffat were arrested in October 2009 and charged [complaint, PDF] along with two other individuals and two business entities with insider trading. The complaint alleged that the individuals provided Galleon Group and another hedge fund with material nonpublic information about several corporations upon which the funds traded, generating $25 million in illicit gain. Rajaratnam and Chiesi originally pleaded not guilty [JURIST report] in December 2009 after being indicted for insider trading.




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Libya officials urged to stop prisoner abuse
Andrea Bottorff on October 13, 2011 2:46 PM ET

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[JURIST] Libyan forces have arrested nearly 2,500 people who face ongoing torture and detainment without formal charges [briefing paper, PDF], Amnesty International (AI) [advocacy website] alleged Thursday. Interviews of 300 Libyan prisoners in August and September revealed that many were abducted from their homes without arrest warrants, were beaten and tortured in prison to elicit confessions and are still being held with charges, all in violation of domestic and international law. Among other abuses, the briefing alleged that sub-Saharan blacks face heightened abuse and discrimination in the detention facilities, including lack of mattresses, verbal abuse and beatings. AI acknowledged the challenges facing the newly formed government, the National Transitional Council (NTC) [website]:
The NTC faces considerable challenges in its efforts to reform the judicial system and control the numerous armed militias that have largely taken the law into their own hands. In a period of transition, it is imperative that the NTC firmly demonstrate its commitment to turning the page on decades of gross and systematic violations in Libya. It must uphold human rights in Libya and exercise the necessary political will to investigate abuses committed by anti-Gaddafi forces, prosecute those responsible, and ensure that individuals found guilty of abuses are held to account for their actions and removed from positions that would allow them to repeat such abuses.
Trials in the country have been suspended [AI news release] since the NTC took control earlier this year.

The NTC has been gaining recognition among other countries, as well as the World Bank [JURIST report]. Last month, the NTC vowed to investigate allegations of human rights after AI published a report [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. Also last month, the NTC assured world leaders 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.




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Kazakhstan president signs restrictive law to curb religious extremism
Andrea Bottorff on October 13, 2011 1:33 PM ET

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[JURIST] Kazakhstani President Nursultan Nazarbayev [official website, in Kazakh; BBC profile] on Thursday signed into law a controversial bill dissolving religious organizations and requiring re-registration, drawing criticism from international observers. 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. Norweigian religious advocacy group Forum 18 [advocacy website] criticized the new law for unnecessarily limiting freedom of religion [statement]. Recently, Kazakhstani lawmakers have been unsettled by religious extremists [VOA report] plotting acts of terrorism across Central Asia's largest economy and hope the new law will help lessen religious militancy. Nazarbayev, who proposed the new measures, signed the law nearly two weeks after the upper house of the Kazakhstani parliament [official website] passed the bill [JURIST report].

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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US lawmakers approve trade agreements with Colombia, Panama, South Korea
Dan Taglioli on October 13, 2011 1:27 PM ET

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[JURIST] The US House of Representatives and Senate [official websites] on Wednesday gave final approval to three free trade agreements, marking the first time in several years that the US has formed a trade partnership. The House and Senate voted in rapid succession [AP report] to pass the trade pacts with Colombia [HR 3078 text], Panama [HR 3079 text] and South Korea [HR 3080 text], which are predicted by the US International Trade Commission [official website] to boost national exports by approximately $13 billion, about 0.1 percent of GDP [BEA materials]. The agreements will lower or eliminate tariffs that US exporters face in the three countries and take steps to better protect intellectual property and improve access for American investors there. The agreement with South Korea, the world's thirteenth largest economy [CIA World Factbook backgrounder] in 2010 with an estimated GDP of $1.459 trillion, is being hailed as the largest such deal since the North American Free Trade Agreement (NAFTA) [USTR backgrounder] with Mexico and Canada in 1994, which created the world's largest free trade zone. The agreements passed by large margins in both chambers of Congress, despite opposition from labor groups and other critics of free trade agreements who say they result in job losses and ignore labor rights problems in the partner countries. In the House, the votes were 278-151 for South Korea, 300-129 for Panama and 262-167 for Colombia; the Senate votes were 83-15 for Korea, 77-22 for Panama and 66-33 for Colombia. The last free trade agreement completed by the US was with Peru in 2007.

Despite the large margins and bipartisan support, the measures did not pass without debate. Republicans criticized President Barack Obama [official website] for taking several years to send the agreements to Congress for approval, as they were each originally signed during the Bush administration. Many in the president's own party, including organized labor and Democrats from areas hit hard by foreign competition, were critical of the White House for espousing the benefits of free trade, especially with Colombia, which has a reputation for violence against labor leaders and a history of labor leader assassinations. To appease Democrats, the White House demanded that the trade bills be linked to an extension of a Kennedy-era program that helps workers displaced by foreign competition, an extension that passed through Congress successfully with the trade agreements. In a press release the Panama Chamber of Commerce [official website] stated it "believes that implementation of the U.S.-Panama agreement will enhance export and investment opportunities for US companies and will enable American workers to compete in the quickly growing global economy, in which Panama plays a pivotal role as the gateway to the Americas." The first official trade pact between the US and Central America was signed [JURIST report] by then-president George W. Bush in 2005.




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Alleged Iran assassination plot may violate UN treaty protecting diplomats
Michael Haggerson on October 13, 2011 12:46 PM ET

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[JURIST] An alleged Iranian plot to assassinate Adel al-Jubeir [official profile], Saudi Arabia's Ambassador to the US, may violate the UN Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents [text, PDF; materials], which Iran signed in 1978. The US Department of Justice [official website] announced on Tuesday that it had foiled the plot [press release]. One man, Manssor Arbabsiar, who was working as a used-car salesman in Texas, was arrested and another, Gholam Shakuri, has been charged but is believed to be in Iran. Both men are Iranian nationals. The plot allegedly involved an attempt by the Iranians to hire a Mexican drug cartel [AP report, video] to assassinate the Saudi ambassador using plastic explosives. The Convention makes it illegal to kill or threaten to kill diplomatic ambassadors and requires nations to either prosecute the offenders or extradite them so that charges can be brought against them. However, Iran has denied involvement in the plot and is unlikely to charge or extradite Shakuri. Because of Iran's refusal to charge Shakuri, the situation may escalate to international courts [Reuters report].

Tensions between Saudi Arabia and Iran have existed for decades [CNN backgrounder]. There is both a political and religious divide between the countries, as Saudi Arabia is predominately Sunni and Iran is predominately Shia. The recent Arab Spring has only exacerbated tensions between the countries [CNN Q&A] as Iran, at least initially, supported the revolutions because it saw Tunisia, Egypt and Bahrain as American allies. Saudi Arabia, on the other hand, wished to preserve the status quo in the Arab world. Many commentators suggest that the alleged assassination plot will only further escalate the tension between the countries [TIME report] and strengthen the weakening US-Saudi relationship.




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Rights groups challenge South Carolina immigration law
Dan Taglioli on October 13, 2011 12:17 PM ET

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[JURIST] A coalition of civil rights groups filed a federal lawsuit Wednesday to block South Carolina's recently passed immigration law [SB 20 text]. Brought by the American Civil Liberties Union (ACLU), the National Immigration Law Center (NILC) [advocacy websites] and other civil rights groups, the class action suit [complaint, PDF] claims the new legislation is unconstitutional, inviting racial profiling and interfering with federal law. The immigration law allows police officers to check a suspect's immigration status during a lawful stop, seizure, detention or arrest, and mandates businesses to participate in the E-Verify [official website] system to check the citizenship status of employees and job applicants. Penalties for knowingly employing illegal immigrants include suspension and revocation of a state business license. Victoria Middleton, executive director of the ACLU of South Carolina [advocacy website], criticized the legislation [ACLU press release] as the lawsuit was filed:
By requiring local law enforcement officials to act as immigration agents, this law invites discrimination against anyone who looks or sounds "foreign," including American citizens and legal residents. It will make criminals out of good Samaritans, harm victims of crime and abuse, hamper police in preventing and solving crimes, and create a climate of fear and prejudice in South Carolina.
The five-count complaint seeks declaratory and injunctive relief against SB 20 as an unlawful contravention of federal immigration law under the Supremacy Clause, an infringement of rights against unlawful search and seizure under the Fourth Amendment and an unconstitutional deprivation of individual liberties under both the Equal Protection and Due Process Clauses of the Fourteenth Amendment [Cornell LII backgrounders].

The US District Court for the Northern District of Alabama [official website] denied similar motions for injunction against that state's recently passed immigration law last week and last month [JURIST reports]. In August, 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 Arizona's controversial immigration law [SB 1070 materials; JURIST news archive], on which the South Carolina and Alabama legislation is modeled. Several other state legislatures have also acted recently to implement so-called "Arizona style" immigration laws. The North Carolina House of Representatives [official website] voted [JURIST report] in June to pass a bill [HB 36 text, PDF] requiring all employers with 25 or more employees to check the immigration status of their hires using the E-Verify system. In April, the Indiana House of Representatives [official website] voted [JURIST report] 64-32 to approve a bill [Amended SB 590 text] considered to be a "watered-down" version of the Arizona bill. Virginia, Oklahoma and Utah [JURIST reports] have all approved Arizona-style immigration bills within the past year.




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Sudan to adopt Islamic constitution
Michael Haggerson on October 13, 2011 12:09 PM ET

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[JURIST] Sudanese President Omar al-Bashir [BBC profile; JURIST news archive] announced Wednesday that Sudan will adopt an Islamic constitution. The creation of an Islamic state, three months after the official split between Sudan and South Sudan [JURIST report], is intended to more accurately reflect the religious affiliation of its population, which is 98 percent Muslim [Reuters reports] now that the mainly Christian South Sudan is recognized as an independent country [JURIST report]. This leaves the future of the more than one million South Sudanese living in Sudan, who have already been given until the spring to leave and are treated as foreigners, even more in doubt.

Al-Bashir remains an extremely controversial figure in international politics for his actions during the Darfur conflict [BBC backgrounder]. The International Criminal Court (ICC) [official website] charged him with three counts of genocide [JURIST report] in July 2010, but he has yet to be arrested. In June, ICC Chief Prosecutor Luis Moreno Ocampo [official website] issued a statement claiming that al-Bashir has continued to commit crimes against humanity [JURIST report] in Darfur. Also in June, UN High Commissioner for Human Rights Navi Pillay [official profile] criticized China [JURIST report] for welcoming al-Bashir rather than arresting him to stand trial. Amnesty International [advocacy website] also urged China, along with Malaysia [JURIST reports], to arrest the Sudanese president.




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Supreme Court hears arguments on strip searches, deportation
Erin Bock on October 13, 2011 9:24 AM ET

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[JURIST] The US Supreme Court [official website] heard oral arguments [day call, PDF] in two cases on Wednesday. In Florence v. Board of Chosen Freeholders of County of Burlington [transcript, PDF; JURIST report], the court considered whether a suspect's Fourth Amendment [text] rights were violated when he was strip searched twice after being arrested for a non-criminal offense and the circumstances did not suggest that he was carrying contraband. Petitioner Albert Florence was arrested in New Jersey after being pulled over when it was discovered that there was an outstanding warrant against him for failure to pay a fine, which is considered a non-criminal offense in New Jersey. He produced a letter stating that he had paid the fine, but the officer made the arrest anyway. Florence was transported to a local jail where he was forced to strip naked for inspection. He was transferred to another correctional facility a week later and was again subjected to a strip search. Florence later filed suit under 42 USC § 1983 [text], alleging that his Fourth Amendment rights were violated. The US District Court for the District of New Jersey granted summary judgment for the defendants, but the US Court of Appeals for the Third Circuit reversed [opinion, PDF]. Counsel for Florence argued that the search was illegal because it was not based on reasonable suspicion, but was based on a jail policy that subjected every arrestee to a strip search. Counsel stated that the case was distinct from the situation in Bell v. Wolfish [materials], where the court ruled that the possible innocence of arrestees should not prevent officials from performing searches in order to maintain their facility. Counsel made a distinction between major versus minor offenders, arguing that strip searches are more warranted for offenders who are "inclined to violence," and called any argument finding suspicion that Florence was smuggling contraband "laugh out loud funny." Counsel requested that the jail's blanketed policy be replaced by a case-by-case review. Counsel for the facilities argued that there was no reasonable suspicion requirement in the case because the search was more cursory and not invasive, like a cavity search. Counsel further argued that the classification of the offense should not matter because minor offenders could just as easily as major offenders smuggle contraband into the prison population. Counsel asked that the court give deference to the judgment of prison officials as to what is appropriate.

In Judulang v. Holder [transcript, PDF; JURIST report], the court considered whether a lawful permanent resident who was convicted by guilty plea of an offense that renders him deportable, but did not leave and reenter the US in the time between his conviction and commencement of removal proceedings, may seek a discretionary waiver of the conviction and thereby avoid removal under former section 212(c) of the Immigration and Nationality Act (INA) [text]. Judulang, the son of immigrants from the Philippines, pleaded guilty to voluntary manslaughter in 1989 and later claimed that he could seek a discretionary waiver of deportation under 212(c). The US Court of Appeals for the Ninth Circuit held [opinion, PDF] that Judulang's aggravated felony crime of violence was not a ground for exclusion under the statute. Counsel for Judulang argued that he would have been eligible to apply for such a waiver under section 212(c) prior to the BIA's 2005 decision in Matter of Blake [opinion, PDF], which changed the policy and found no statutory counterpart to 212(c) in the current immigration Act. Counsel argued that the change in policy violated equal protection as well as "considerations of fair notice, reasonable reliance, and settled expectations." Counsel for the government argued that the BIA was consistent in its decision making in this area of the law, citing earlier decisions that were consistent with Blake.




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Attempted plane bomber pleads guilty to all charges
Dan Taglioli on October 12, 2011 1:54 PM ET

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[JURIST] Nigerian national Umar Farouk Abdulmutallab [BBC profile; JURIST news archive] pleaded guilty Wednesday in the US District Court for the Eastern District of Michigan [official website] to all counts of a criminal indictment charging him for his role in the attempted Christmas Day 2009 bombing of Northwest Airlines flight 253 from Amsterdam to Detroit. Abdulmutallab, 24, admitted to eight felonies [Reuters report], including conspiracy to commit terrorism, attempted murder and attempted use of a weapon of mass destruction. In January 2010 not-guilty pleas [JURIST report] were entered on behalf of Abdulmutallab, who was representing himself in the trial with help from an attorney. As the prosecution this week was preparing to present a mountain of physical evidence against him, Abdulmutallab, who is linked to al Qaeda, suddenly and against the advice of the assisting attorney changed his pleas [Guardian report] in a five-minute statement before the court in which he claimed he was participating in an act of jihad against the US by trying to bring down the civilian airliner, which held almost 300 people. Abdulmutallab intended to blow the plane out of the sky over US soil, but the bomb concealed in his underwear failed to go off. Instead, he suffered severe burns and was subdued by fellow passengers and airline crew. Before accepting his guilty pleas, US District Judge Nancy Edmunds required Abdulmutallab to make a statement acknowledging the factual basis of the charges against him. He will be sentenced on January 12 and faces life in prison.

The trial began only Monday, with jury selection having taken place [JURIST report] last week. In September, the court ruled [JURIST report] that statements made by Abdulmutallab while in the hospital following his bombing attempt were admissible. In December 2010, 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. Three months earlier, in September, Abdulmutallab fired his lawyers and chose to represent himself [JURIST report]. 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.




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Alabama defends immigration law in federal appeals court
Andrea Bottorff on October 12, 2011 1:49 PM ET

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[JURIST] Alabama Attorney General Luther Strange [official website] on Tuesday submitted a filing in the US Court of Appeals for the Eleventh Circuit [official website] asking the court not to stay the state's controversial immigration law [text]. The filing was in response to a motion filed last week by the US Department of Justice (DOJ) [official website], which requested that the court halt enforcement [JURIST report] of the state's immigration law [HB 56 text] that expands restrictions on undocumented immigrants, arguing that the state law is preempted by federal immigration law. Strange argued that the law is necessary to address the problem of illegal immigrants "taking jobs away from United States citizens and authorized aliens who desperately want to work in these hard economic times." Strange also argued that an injunction of the law would confuse the public and cause long-lasting harm, while allowing officials to enforce the law as the case proceeds would promote consistency. The law requires school officials to verify the immigration status of children and parents, authorizes police to detain an individual and ask for papers if the officer has "reasonable suspicion" that the driver is in the country illegally, and requires businesses to use the federal E-Verify system [official website] to determine whether potential employees are legal residents.

The US District Court for the Northern District of Alabama [official website] denied two similar motions for injunction last week and last month [JURIST reports]. Alabama state officials have defended the law [JURIST report] and argue that the state law is not preempted by federal immigration law. The state officials point out that the law contains mechanisms safeguarding against unlawful discrimination on the basis of race, color, or national origin and allegations suggesting provisions of the law would deter students from enrolling in school are speculative. The DOJ, joined by several rights groups, appeared before the court in August [JURIST report] to make arguments against the law's enactment, at which point Chief Justice Sharon Lovelace Blackburn issued the temporary injunction to forestall enactment of the challenged provisions while she evaluated their contention with federal statute. From when the legislation was signed into law in June, 16 countries filed briefs [JURIST reports] 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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Florida challenges federal voting rights law
Dan Taglioli on October 12, 2011 1:11 PM ET

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[JURIST] Florida submitted a request to the US District Court for the District of Columbia [official website] Tuesday seeking declaratory judgments regarding recently-enacted changes to the state's Election Code [materials, PDF], four sections of which require Section 5 [DOJ backgrounder] "preclearance" under the Voting Rights Act of 1965 (VRA) [materials]. Relying heavily on patterns of past discrimination to determine which state, county and local governments must obtain preclearance for election changes, the Section 5 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 before enactment. The four relevant sections of the Florida voting law changes [Miami Herald report] reduce the number of days of early voting from 14 to eight, require voters who move from county-to-county and who update their addresses at the polls to cast provisional ballots, require third-party groups that register voters to submit forms within 48 hours or face penalties and reduce the validity of voters' signatures on initiative petitions from four years to two. Even though the provisions in question have been under review by the DOJ, Florida Secretary of State Kurt Browning [official profile] requested [complaint, PDF] that the federal court either declare those provisions entitled to preclearance under Section 5, or declare the preclearance obligation of Section 5 itself unconstitutional, along with its coverage formula prescribed in Section 4(b) of the VRA, and to issue a permanent injunction enjoining their enforcement. Currently five counties in Florida are covered by Section 5. 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 US Senate extended the VRA [NYT report] in 2006 by an overwhelming 98-0 vote.

Last month the DC District Court dismissed a similar constitutional challenge [JURIST report] to the Section 5/4(b) preclearance rules. In dismissing the suit brought by officials representing Shelby County, Alabama, and a corps of conservative activists, the court concluded that the modern existence of intentional racial discrimination in voting does in fact justify the 2006 reauthorization of the VRA requirements. 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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Afghanistan government denies UN torture allegations
Andrea Bottorff on October 12, 2011 12:26 PM ET

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[JURIST] Afghanistan's Ministry of Interior Affairs [official website] and the National Directorate of Security (NDS) on Tuesday denied prisoner torture allegations made earlier this week in a UN report. A spokesperson for the Ministry said at a press conference that there was no basis for the report's findings [Khaama Press report] and that publicizing such information could hurt the people's trust in the police. The UN Assistance Mission in Afghanistan (UNAMA) [official website] on Monday eleased a report alleging that prisoners in some Afghan-run detention facilities have been beaten and tortured [JURIST report]. The prisoners interviewed for the study had been detained by the NDS or Afghan National Police (ANP) forces for national security crimes. Nearly half of the 273 detainees interviewed reported that they had undergone interrogation that amounted to torture. UNAMA also alleged that NDS and ANP officials committed due process violations and arbitrarily detained arrestees but did acknowledge that the abuse was not the result of official government policy.

Afghanistan has received much criticism for its human rights record. Human Rights Watch (HRW) [advocacy website] reported in September that the Afghan Local Police (ALP) force is committing serious abuses [JURIST report], and the Afghan government is doing little to hold the officials accountable. 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.




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UN urged to stop political interference in Cambodia genocide tribunal
Ashley Hileman on October 12, 2011 10:45 AM ET

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[JURIST] Rights groups urged the UN Tuesday to assure that Cambodia will not interfere in a tribunal established by the UN charged with investigating the communist Khmer Rouge regime [JURIST news archive; BBC backgrounder] of the 1970s. The pressure for UN action [AFP report] results from the resignation of Siegfried Blunk [JURIST report], one of the judges for the Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website], who blamed political interference for his decision. Blunk alleged statements were made by various Cambodian officials that threatened his "ability to perform his duties independently" and more significantly, "the integrity of the whole proceedings" in the cases currently at issue. Both Amnesty International (AI) and Human Rights Watch (HRW) [advocacy websites] have emphasized the need for the UN's involvement in the form of an investigation into the existence or extent of political interference at the court.

Blunk's departure is only the latest setback for the court, which has consistently faced allegations of political interference and has completed only one trial [JURIST report] since its inception in 2001. Last week, HRW demanded the resignation [JURIST report] of Blunk and his counterpart You Bunleng of Cambodia, who are responsible for indictments. HRW alleges that the two investigating judges have "egregiously violated their legal and judicial duties ... [by failing] to conduct proper and good-faith investigations [in violation of] their responsibilities to act impartially." The rights group said that the two judges "failed to conduct genuine, impartial, and effective investigations into ECCC cases 003 and 004," and that as a result both of those case will likely be dropped. Both cases deal with allegations of atrocities committed under the Khmer Rouge regime. In April, the judges declared that they had concluded their investigation into Case 003 [materials] and a formal closing order is expected to be issued soon. The judges are also expected to close and dismiss Case 004 [materials]. Should closing orders be issued in either case, the prosecutor can appeal to the pre-trial chamber. The Khmer Rouge have been blamed for the deaths of some 1.7 million people [PPU backgrounder] from starvation, disease, overwork and execution between 1975 and 1979.




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Ecuador president approves new antitrust law
Ashley Hileman on October 12, 2011 10:11 AM ET

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[JURIST] Ecuadorian President Rafael Correa [official website, in Spanish; BBC profile] on Tuesday enacted an antitrust law, provisions of which further his conflict with the country's news media. The new law specifically bars [AP report] news media owners and bankers from holding financial stakes in other industries and generally bars companies from establishing a monopoly in any industry. The law provides until July 2012 for media owners and bankers to divest their interests in other industries with those in violation facing the possibility of a fine based on the amount of their investments. While the law was approved by voters in a May referendum and had little trouble passing through Congress on September 29, it has been criticized by the country's business community. In a radio interview [audio, in Spanish], Correa articulated his support for the new law and cited the success of similar longstanding laws in the US and Chile.

Correa's problems with the Ecuadorian news media stem both from his belief that they are corrupt and from a criminal libel suit he initiated earlier this year. In July, Correa won his criminal libel claim [JURIST report] against the owners and a columnist of newspaper El Universo, resulting in fines of USD $40 million and a three-year sentence for the offending journalist and editors. Emilio Palacio [Twitter account], Nicholas Perez, Cesar Perez and Carlos Perez, the owners of El Universo, were personally fined $30 million in addition to their sentences, while the newspaper itself was fined $10 million for printing the article. Palacio's editorial, "No to the Lies!" was published in February 2011 and referenced an incident in September 2010 when protesting police officers fired tear gas at Correa, surrounded the hospital at which he was being treated and trapped him there for 12 hours. Palacio's editorial criticized Correa for pardoning the criminals and suggested he was doing so because the "attempted coup" was staged to increase his political power [JURIST report]. In a statement [El Ciudadano, in Spanish], Correa called the suit one of his greatest legacies, and that now the Ecuadoran "corrupt press" know they cannot "damage the honor of a person."




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Supreme Court hears arguments on workers compensation, arbitration
Julia Zebley on October 12, 2011 8:04 AM ET

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[JURIST] The US Supreme Court [official website] heard oral arguments [day call, PDF] in three cases on Tuesday. In Pacific Operators Offshore LLP v. Valladolid [transcript, PDF; JURIST report], the court considered when an outer continental shelf worker, injured on land, is eligible for compensation under the Outer Continental Shelf Lands Act (OCSLA) [43 USC §§ 1331-1356 text]. The OCSLA governs those who work on oil drilling platforms and other fixed structures beyond state maritime boundaries, and workers are eligible for compensation for "any injury occurring as the result of operations conducted on the outer Continental Shelf." Juan Valladolid worked for Pacific Operations Offshore, stationed primarily on an offshore drilling platform, but was killed on the grounds of Pacific Operations' onshore oil processing facility when he was crushed by a forklift. The US Court of Appeals for the Ninth Circuit ruled [opinion, PDF] in favor of Valladolid's estate, explaining that the OCSLA workers' compensation provision ... applies to any injury resulting from operations on the outer continental shelf, regardless of the location of the injury. An injury is 'the result of' outer continental shelf operations if there is a substantial nexus between the injury and the operations." Pacific Operators Offshore argued that the OCSLA has no remedy for an injury that occurred on dry land, but rather Valladolid should have sought relief through state workers compensation law. The federal government argued that the OCSLA covers injuries or death on dry land explicitly, but not under the "nexus" reasoning the Ninth Circuit utilized. Valladolid's attorney argued that, pursuant to similar treatment in the Jones Act [text], his client's estate should be compensated for his death that occurred on land. Justice Samuel Alito noted that although the death arrived out of the work, all three parties only wanted to focus on the location: "The curious thing about this case is that the statutory language seems to me to speak quite clearly to some theory of causation. Maybe it's but-for, maybe it's proximate, but it's some—some species of causation. Any injury occurring as a result of operations conducted on the outer continental shelf, that's—that's causation. And yet nobody wants this really to be—neither you nor your adversary nor the government wants this to be a—to be based on causation. Everyone wants to smuggle something else into—into here—into this."

In CompuCredit Corp. v. Greenwood [transcript, PDF; JURIST report], the court heard arguments on whether claims arising under the Credit Repair Organizations Act [15 USC § 1679 et seq.] are subject to arbitration pursuant to a valid arbitration agreement. The case arises from a dispute between consumers and companies that issue low-rate credit cards to people with bad credit. The consumers filed a lawsuit over credit card fees, and the US Court of Appeals for the Ninth Circuit ruled that they had a right to sue in federal court rather than face arbitration. The attorney for CompuCredit argued that strong federal policy in favor of arbitration overrides any differing laws that discourage waivers of rights to sue. Respondents argued that the Credit Repair Organizations Act explicitly bans any suggestion of waiving the right to sue, and that credit card companies should be fined for even asking applicants to sign an arbitration waiver.

Finally, in Greene v. Fisher [transcript, PDF; JURIST report], the court heard arguments surrounding the "clearly established federal law" standard under 28 USC § 2254(d) [text], as amended by the Antiterrorism and Effective Death Penalty Act of 1996. Petitioner Eric Greene was convicted and sentenced to life imprisonment for involvement in a robbery of a convenience store in which the store's owner was shot and killed. At the trial, Greene objected to the admission of confessions of his conspirators and co-defendants on Confrontation Clause [Sixth Amendment text] grounds. The court allowed the confessions with Greene's name redacted. He renewed this objection on appeal, arguing on the grounds of the Supreme Court's decision in Gray v. Maryland [text], where a similarly redacted confession was deemed inadmissible. Gray was decided before Greene's conviction became final but after the state court's last decision on the merits. The Third Circuit held that an opinion issued after a decision on the merits in state court is not "clearly established federal Law." Greene's attorney argued that it was a bedrock rule that prisoners should benefit from any ruling made before "finality." The attorney for Pennsylvania argued that Greene asking for law that had been decided after "finality" was asking for new facts to be applied, and thus inapplicable: "For the proposition that our case has emphasized that review under 2254(d)1 focuses on what a State court knew and did. State court decisions are measured against this Court's precedent as of the time the State court renders its decision. The jumping off point, so to speak, for the Court's extension of the principle the effect that we are debating today to the area of new facts. And I don't think there is any way to reconcile that holding with the Petitioner's argument or with the language of the statute."




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Ukraine ex-PM Tymoshenko sentenced to 7 years
Julia Zebley on October 12, 2011 7:01 AM ET

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[JURIST] Former Ukrainian prime minister Yulia Tymoshenko [personal website; JURIST news archive] was sentenced to seven years in prison [press release] on Tuesday on charges of abuse of power and corruption. Judge Rodion Kireyev also barred Tymoshenko from serving public office for three years and ruled in favor of a 1.5 billion hryvnias judgment against her. Despite the conviction, international support for Tymoshenko remains strong, with many calling for her release. Amnesty International (AI) [advocacy website] called the trial politically motivated on charges that are not internationally recognizable offenses [press release]. The European Union (EU) [official website] announced that the treatment of Tymoshenko will have repercussions for Ukraine's EU accession [press release]:
The EU urges the competent Ukrainian authorities to ensure a fair, transparent and impartial process in any appeal in the case of Ms. Tymoshenko and in the other trials related to members of the former Government. The right of appeal should not be compromised by imposing limitations on the defendants' ability to stand in future elections in Ukraine, including the parliamentary elections scheduled for next year. The EU will reflect on its policies towards Ukraine. The way the Ukrainian authorities will generally respect universal values and rule of law, and specifically how they will handle these cases, risks having profound implications for the EU-Ukraine bilateral relationship, including for the conclusion of the Association Agreement, our political dialogue and our co-operation more broadly.
Tymoshenko repeated her hope [press release] that the European Court of Human Rights (ECHR) [official website] would overturn the verdict and stated her intention to appeal [press release]. In June, Tymoshenko filed a complaint [JURIST report] with the ECHR 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 week, the Ukrainian parliament [official website] rejected four amendments to the country's Criminal Code [materials] that sought to decriminalize Article 365, which stipulates jail time for abuse of office [JURIST report]. Tymoshenko's trial resumed at the end of September after a two-week recess [JURIST reports]. In August, Yushchenko 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. 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 to hear double jeopardy case
Sarah Posner on October 11, 2011 1:19 PM ET

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[JURIST] The US Supreme Court [official website] on Tuesday granted certiorari [order list, PDF] in two cases. In Blueford v. Arkansas [docket; cert. petition, PDF], the court will decide whether the Double Jeopardy [Cornell LII backgrounder] clause prevents the re-prosecution of a greater offense after the jury announces voting for a not guilty verdict, if a jury deadlocks on a lesser-included offense. Alex Blueford contends that jeopardy attached to the jury's determination that he is not guilty of capital murder and its lesser-included offense of first-degree murder. The Arkansas Supreme Court upheld [opinion, PDF] the order denying Blueford's motions to prevent his retrial on the charge of capital murder and its lesser-included offenses.

In Freeman v. Quicken Loans, Inc. [docket; cert. petition, PDF], the court will decide whether Section 8(b) of the Real Estate Settlement Procedures Act (RESPA) [text] prohibits a real estate settlement services provider from only charging an unearned fee when the fee is divided between two or more parties. The US Court of Appeals for the Fifth Circuit held [opinion, PDF] that the RESPA prohibits only kickbacks and referral fees, not unearned fees by a sole provider of settlement services. Therefore, charges that Quicken imposed on the appellants for loan discount fees and a loan processing fee are not prohibited by Section 8(b) of the RESPA.

Also Tuesday, the court denied certiorari in Adar v. Smith [docket; JURIST report], in which a same-sex couple wants both their names on the birth certificate of an adopted child. The issue presented was whether denying non-married couples from having both names appear on an adopted child's birth certificate is a violation of the Equal Protection Clause of Fourteenth Amendment to the US Constitution.

The court also denied certiorari in the case of Mumia Abu-Jamal [docket; JURIST Philadelphia Inquirer backgrounder], letting stand the US Court of Appeals for the Third Circuit's decision [JURIST report] granting a new sentencing hearing for Abu-Jamal. Abu-Jamal is a former member of the Black Panthers who was convicted and sentenced to death for killing a police officer in Philadelphia in 1981.




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Syria rejects calls to join ICC
Jennie Ryan on October 11, 2011 11:11 AM ET

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[JURIST] Syria has rejected calls from several nations for it to join the International Criminal Court (ICC), according to a report adopted Tuesday by the UN Human Rights Council (UNHRC) [official websites]. The report also includes a number of recommendations to the country aimed at improving its human rights record which has been widely criticized since the country began to crackdown on anti-government protests early this year. In statements contained in the report, Syria asserts that the violence in the country is the result of "terrorist threats" prompted by "a media war" and "the hegemony of the West, the US and Israel." The government of President Bashar al-Assad [BBC profile] has continued to crack down on anti-government protests in the country, killing and estimated 3,000 civilians since mid-March.

Last month, the UNHRC voted 33-4 to adopt a resolution [JURIST report] ordering an investigation [press release] into crimes against humanity in Syria and urging the Syrian government once again to halt its violent crackdown against peaceful protesters. An emergency meeting was held in response to a plea [JURIST report] from UN High Commissioner for Human Rights Navi Pillay [official profile] to refer Syria to the ICC for an investigation into the violent suppression of anti-government protests. Many steps have been taken to try and halt the violence in Syria. In August, 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. In June, the UN Office of the High Commissioner for Human Rights (OHCHR) [official websites] published a preliminary report [JURIST report] describing human rights violations in Syria and calling for an investigation into government-authorized abuses related to pro-democracy protests that began earlier this year. In April, Pillay urged Syria to immediately halt the killings [JURIST report] and violence against civilian protesters in response to the fatal shootings of peaceful anti-government protesters.




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Egypt court overturns ban on religious-based political party
Alexandra Malatesta on October 11, 2011 10:54 AM ET

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[JURIST] An Egyptian court on Monday overturned a ban that prohibited presidential hopeful Ayman Nour [BBC profile] from forming a political party and also prohibited the formation of the Islamic-based political party Al-Gama'a al-Islamiya [party website]. The decision will allow political parties [Reuters report] previously banned because of their religious foundations to participate in the upcoming November parliamentary elections. The court found that Al-Gama'a al-Islamiya's party, "Construction and Development," should be allowed to participate in the elections because its founders consist of Muslims and non-Muslims and the party does not mandate the religion of its members.

While the decision marks progress in Egypt's journey towards democratic rule, certain election prohibitions continue to restrict its progress. The Egyptian Supreme Council of the Armed Forces [NYT backgrounder] on Saturday amended election rules to ban the use of religious slogans in campaigning [JURIST report]. The Supreme Council stated that "[e]lectoral campaigns based on the use of religious slogans or on racial or gender segregation are banned," adding that violators could be fined and face up to three months in jail. The new decree will have an immediate effect on the Muslim Brotherhood (MB) [party website; JURIST news archive] whose traditional slogan, "Islam is the solution," will be banned under the new electoral guidelines. The MB was officially declared legal [JURIST report] in June for the first time since the powerful political organization's inception nearly 80 years ago, but has been banned in Egypt since 1954.




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Accused war criminal on trial at ICTY admitted to hospital
Jennie Ryan on October 11, 2011 10:11 AM ET

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[JURIST] Accused war criminal Ratko Mladic [ICTY backgrounder, PDF; JURIST news archive] has been hospitalized suffering from pneumonia, his lawyers said Tuesday. Mladic is awaiting trial at the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] on charges of genocide and war crimes allegedly committed during the Bosnian civil war [JURIST news archive]. The ICTY confirmed that Mladic is receiving medical treatment [Reuters report], but it could not confirm the reason for the hospitalization. Mladic has complained of ill health since his trial began, prompting officials to propose splitting the case in two in order to accelerate the pace of the proceedings. It is not immediately clear what this hospitalization will mean for the proceedings.

Serbian authorities captured Mladic [JURIST report] in May, ending a 16-year manhunt for the former general colonel and commander of the army of the Serbian Republic of Bosnia and Herzegovina. During his appearance at the ICTY in July he was removed from the courtroom [JURIST report] for disrupting the proceedings. Mladic made his first appearance [JURIST report] at the ICTY in June, contesting the charges while simultaneously asking for more time to review them, which he was granted. He lost his final appeal in Serbia to avoid extradition and was transported to The Hague [JURIST reports] in early June. Mladic faces charges of genocide and crimes against humanity, including murder, political persecution, forcible transfer and deportations, cruel treatment and the taking of peacekeepers as hostages. He is most infamous for allegedly ordering the slaughter of 8,000 Muslim men and boys in the massacre of Srebrenica during the Bosnian civil war.




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UN rights expert urges states to prevent violence against women
Alexandra Malatesta on October 11, 2011 9:50 AM ET

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[JURIST] UN Special Rapporteur on Violence Against Women [official website] Rashida Manjoo [official profile] appeared in front of the UN General Assembly [official website] Monday to urge states to fulfill their obligations to prevent violence against women. Presenting her report [text, PDF] on the pervasive, widespread violence against women throughout the world and its causes and consequences, Manjoo reminded states [APP report] of their international human rights obligation to protect women from all manifestations of discrimination, whether it be from violence, inequality or oppression. Though there has been an increase in women's educational enrollment and employment opportunities and progress made in repealing some discriminatory legislation, there is a lot left to be accomplished [UN News Centre report] in order "to ensure their full enjoyment by all women and girls worldwide." Also discussed during the session was a wide range of other forms of discrimination, from sexual violence such as genital mutilation to under-representation of women in corporate executive positions:
Throughout the world, violence against women is pervasive, widespread and unacceptable. Rooted in multiple and intersecting forms of discrimination and inequalities, and strongly linked to the social and economic situation of women, violence against women constitutes a continuum of exploitation and abuse. Whether it occurs in times of conflict, post conflict or so called peace, the various forms and manifestations of violence against women are simultaneously causes and consequences of discrimination, inequality and oppression.
Manjoo's presentation follows her earlier request for the US government to reevaluate its domestic violence policies [JURIST report].

Equality and women's rights continue to be an issue for much of the world. Manjoo also released a report in June that said there is a continued prevalence of violence and discriminatory treatment of women in the US [JURIST report], with a heightened impact on poor, minority and immigrant women. In March, UN High Commissioner for Human Rights Navi Pillay [official profile] pressed [JURIST report] Tunisia and Egypt to ensure that women's rights receive constitutional protection and to include women in the dialogue to shape the future of their countries. In January, a US Military panel recommended [JURIST report] that women should be allowed to serve on the front lines of combat. Last year, Human Rights Watch (HRW) [official website] called on the Afghan government to protect the rights of women [JURIST report] during integration and reconciliation efforts conducted with the Taliban [GlobalSecurity backgrounder] and other militants. Earlier in 2010, India's upper house of parliament, the Rajya Sabha [official website], approved a bill [JURIST report] to ensure that one-third of seats in parliament are reserved for women.




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HRW urges justice for DRC rights abuses
John Paul Putney on October 11, 2011 9:43 AM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] on Monday called [press release] on governments around the world to "intensify efforts to bring to justice those responsible for grave abuses" in the Democratic Republic of Congo (DRC) [BBC backgrounder], highlighted by the UN's recent mapping report [PDF]. A full year after the report was published, detailing over 600 violations of international law [UPI report], HRW says there has been not be sufficient follow-up by African governments or the UN. HRW Africa director Daniel Bekele called for action:
With the best will in the world, the Congolese government cannot deal with the legacy of the country's massive abuses alone. The crimes committed in Congo involved border-crossing perpetrators, placing responsibilities on many governments to ensure that justice is done. ... While some of the incidents covered in the mapping report were well known, the compilation of so many atrocities into one report was a shocking wake-up call. All concerned governments, as well as those named, should ensure that the report is not simply shelved, and take action on its findings.
HRW indicated its support for the establishment of a specialized mixed court, with jurisdiction over past and current serious international crimes, including war crimes, crimes against humanity and genocide, committed in Congo.

Rights groups have consistently called for more accountability for human rights abuses in the DRC. In August, Amnesty International (AI) [advocacy website] called for justice system reform in the DRC. The report [text, PDF] stated that the justice system has allowed the Congolese army and other armed groups to engage in a "cycle of violence and human rights violations for decades," alleging that the groups have engaged in torture, sexual violence and murder against citizens and that very few perpetrators have been brought to justice. In July, the UN Organization Stabilization Mission in DR Congo (MONUSCO) in conjunction with the UN High Commissioner for Human Rights (OHCHR) [official websites] released a report [text, PDF] accusing soldiers in the Armed Forces of the Democratic Republic of Congo (FARDC) of committing mass rape [JURIST report]. The report is the first to officially provide evidence that national forces perpetrated mass rape, as opposed to reports of opposition forces using it as a weapon [JURIST report]. In May, UN Secretary-General Ban Ki-Moon and the UN Security Council [official websites] called for continued reforms [JURIST report] in the DRC in order to strengthen the country's rule of law.




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Myanmar to free hundreds of political prisoners
John Paul Putney on October 11, 2011 8:58 AM ET

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[JURIST] US Assistant Secretary of State Kurt Campbell [official profile] on Monday indicated Myanmar's civilian-led government is planning dramatic changes including releasing hundreds of political prisoners and consequential dialogue with pro-democracy leader Aung San Suu Kyi [BBC profile; JURIST news archive]. Journalists, lawyers and democracy advocates are among the detainees to be released and pardoned [AFP report], although no date has been set. Campbell has expressed cautious optimism [BBC report] but indicated reforms must be substantial and enduring. The National League for Democracy [official website], led by Suu Kyi, appears poised to participate in parliamentary elections [Telegraph report] later this year after the military-backed government agreed to reforms including permitting candidates to compete without accepting the controversial 2008 constitution [text, PDF].

Myanmar has sought to improve its international reputation following a transfer of power [BBC report] from a military regime to a civil system in March after holding its first elections in 20 years. Last month, Myanmar's government formed the Myanmar National Human Rights Commission (MNHRC) [JURIST report] to promote and safeguard the country's constitutional rights. In August, UN Special Rapporteur on the situation of human rights in Myanmar Tomas Ojea Quintana [official profile] urged the government of Myanmar to investigate human rights abuses [JURIST report] and improve its rights record. In May, Myanmar began releasing as many as 15,000 prisoners [JURIST report] as part of an amnesty program after a visit from a special envoy from the UN secretary-general, but rights groups claim the government has not gone far enough. Critics of the new regime argue it 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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Liberty University asks Supreme Court to review health care law
Drew Singer on October 11, 2011 8:27 AM ET

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[JURIST] Liberty University [official website] on Friday petitioned [text, PDF] the US Supreme Court [official website] to review its case against the Patient Protection and Affordable Care Act (PPACA) [HR 3590 text; JURIST backgrounder]. The US Court of Appeals for the Fourth Circuit [official website] last month ruled [JURIST report] that it could not review the university's case until the health care law takes effect until 2014 because of a tax law issue. The circuit court vacated a lower court's ruling [JURIST report] with the decision. Liberty University is challenging the constitutionality of the individual mandate, marking the fourth such challenge to officially reach the high court.

It is becoming increasingly likely that the Supreme Court will review the health care law this term, especially after the US Department of Justice [official website] asked the high court to do so last month [JURIST report]. The DOJ was appealing an August ruling by the US Court of Appeals for the Eleventh Circuit [official website], which struck down the individual mandate [JURIST report] as unconstitutional, creating a circuit split. Virginia Attorney General Ken Cuccinelli [official website] has also asked the Supreme Court to weigh in [JURIST report] on PPACA, appealing a Fourth Circuit ruling. 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 [advocacy website]. Also in August, 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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UN expert condemns Thailand royal insult law
Drew Singer on October 11, 2011 7:04 AM ET

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[JURIST] UN Special Rapporteur on freedom of expression Frank La Rue [official website] on Monday condemned [press release] a law in Thailand that criminalizes insulting the country's royal family. Section 112 of the Thai Penal Code [text] says that "whoever defames, insults or threatens the King, the Queen, the Heir to the throne or the Regent shall be punished with imprisonment of three to fifteen years." The statement came after Thai-born US citizen Joe Gordon pleaded guilty Monday to defaming the royal family by translating excerpts of a locally banned book and posting them online. La Rue also condemned the country's 2007 Computer Crimes Act [unofficial text], which imposes a prison sentence of up to five years for any views expressed on the Internet in relation to the monarchy deemed to be a threat to national security. The Act is used to further enforce the country's insult law, La Rue said, "[t]he threat of a long prison sentence and vagueness of what kinds of expression constitute defamation, insult, or threat to the monarchy, encourage self-censorship and stifle important debates on matters of public interest, thus putting in jeopardy the right to freedom of opinion and expression. ... This is exacerbated by the fact that the charges can be brought by private individuals and trials are often closed to the public."

In 2009, Amnesty International (AI) [advocacy website] called for a public trial [JURIST report] for a Thai political activist accused of lese majeste, or insulting the royal family. Judge Prommat Toosang ordered [Reuters report] that the trial of Darunee Charnchoengsilpakul [advocacy website] be closed for national security reasons. AI's Asia-Pacific director Sam Zarifi noted that although the closure of trials is legitimate under the International Covenant on Civil and Political Rights (ICCPR) and the Thai Constitution, the government "will have a very difficult time explaining why the trial of someone charged with making an insulting remark could compromise Thailand's national security." Zafiri said that Prommat's guarantee of a fair trial was inadequate and "simply not verifiable" unless the trial is conducted in public.




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Egypt bans use of religious slogans in elections
Jennie Ryan on October 10, 2011 5:22 PM ET

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[JURIST] The Egyptian Supreme Council of the Armed Forces [NYT backgrounder] on Saturday amended election rules to ban the use of religious slogans in campaigning. The Supreme Council stated that "[e]lectoral campaigns based on the use of religious slogans or on racial or gender segregation are banned," adding that violators could be fined and face up to three months in jail. The new decree will have an immediate effect on the Muslim Brotherhood [party website; JURIST news archive] whose traditional slogan, "Islam is the solution," will be banned under the new electoral guidelines. A Muslim Brotherhood official noted that while the "[t]he slogan is a way of life for us ... it isn't necessarily an electoral slogan." However, the official also said the Muslim Brotherhood leadership is reconsidering their use of the phrase. Voting in a parliamentary election starts in the country on November 28.

In March, Supreme Council of the Armed Forces announced that it would lift the state of emergency [JURIST report] before parliamentary polls were to be held. The election announcement came a week after an overwhelming majority of Egyptians voted to approve several constitutional amendments [JURIST report] in a national referendum. The majority approval is considered by some to be a milestone [JURIST comment] for Egypt during its transition to a democratic society following the national uprising [JURIST news archive] against former Egyptian president Hosni Mubarak [Al Jezeera profile]. Both the National Democratic Party and the Muslim Brotherhood supported the amendments to the Egyptian Constitution [text], which include lowering the presidential term limit and mandating new criteria for potential presidential candidates.




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India high court stays execution of Mumbai gunman
Jennie Ryan on October 10, 2011 4:47 PM ET

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[JURIST] The Supreme Court of India [official website] on Monday stayed [text] the execution of a Pakistani national convicted for his participation in the 2008 Mumbai terrorist attacks [BBC backgrounder; JURIST news archive]. The stay was issued after Mohammad Ajmal Amir Kasab [NDTV profile] filed an appeal challenging the death sentence [JURIST reports]. Kasab was convicted [JURIST report] in May 2010 of waging war against India, multiple murders and conspiracy for his participation in the Mumbai attacks during which gunmen targeted hotels, Mumbai's main railway station and a Jewish cultural center. The attacks resulted in 166 deaths, including nine other gunmen. Kasab carried out the attack on the train station which killed 52 people. Two alleged Indian accomplices tried with Kasab were acquitted on all charges of helping to plan the attacks. Kasab is the only surviving gunman from the Mumbai attacks.

In February, an Indian appeals court upheld Kasab's conviction and death sentence [JURIST report]. In January 2010, a judge denied [JURIST report] Kasab's request for an international trial after Kasab claimed that he would not receive a fair trial in India. In March, US citizen and Chicago resident David Headley pleaded guilty [JURIST report] to 12 counts of federal terrorism stemming from the Mumbai terror attacks and a terror incident in Copenhagen. A federal jury acquitted Tahawwur Hussain Rana [JURIST report], a Chicago resident with Canadian citizenship, of participating in the Mumbai terror attacks in June, but convicted him on two counts of planning to attack a Copenhagen newspaper after Headley testified at his trial. In December, Spanish authorities arrested seven men [JURIST report], including six Pakistanis and one Nigerian, in Barcelona suspected of aiding in the Mumbai terror attacks by allegedly stealing passports and other identification documents belonging to male tourists between the ages of 20 and 30, then sending the documents to Thailand where they would be forged and then forwarded to terrorist groups.




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Afghanistan prisoners facing abuse, torture: UN report
Maureen Cosgrove on October 10, 2011 10:09 AM ET

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[JURIST] Prisoners in some Afghan-run detention facilities have been beaten and tortured, according to a report [text, PDF; executive summary] released Monday by the UN Assistance Mission in Afghanistan (UNAMA) [official website]. The prisoners interviewed for the study had been detained by the National Directorate of Security (NDS) or Afghan National Police (ANP) forces for national security crimes. Nearly half of the 273 detainees interviewed reported that they had undergone interrogation that amounted to torture. UNAMA also alleged that NDS and ANP officials committed due process violations and arbitrarily detained arrestees but did acknowledge that the abuse was not the result of official government policy. The report contends that torture and arbitrary detention undermine reconciliation and reintegration of former Taliban members into Afghan society and compromises national security:
Torture, ill-treatment and arbitrary detention by the NDS and ANP are not only serious violations of human rights and crimes they also pose obstacles to reconciliation and reintegration processes aimed at ending the armed conflict in Afghanistan. UNAMA's research along with the findings of other experts who have analysed the emergence and growth of the insurgency post-2001, highlights that such abuses in many cases contributed to individual victims joining or rejoining the Taliban and other anti-Government armed groups.
UNAMA recommended that the Afghan government, the NDS and ANP adopt and implement measures to reduce abuse in detention facilities.

Afghanistan has received much criticism for its human rights record. Human Rights Watch (HRW) [advocacy website] reported in September that the Afghan Local Police (ALP) force is committing serious abuses [JURIST report], and the Afghan government is doing little to hold the officials accountable. 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.




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Germany judge resigns from Cambodia genocide tribunal
Maureen Cosgrove on October 10, 2011 9:31 AM ET

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[JURIST] A German judge at the Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website; JURIST news archive] resigned [press release] on Monday over statements made by the Cambodian foreign minister. Cambodian government officials have put pressure on the international court to turn the cases over to Cambodia, with the Cambodian foreign minister purportedly stating, "On the issue of the arrest of more Khmer Rouge leaders, this is a Cambodian issue. ... This issue must be decided by Cambodia." ECCC Judge Siegfried Blunk resigned from the panel of judges in an effort to maintain the "integrity of the whole proceedings," though he indicated that he would not have been influenced by such statements. Both Blunk and co-judge You Bunleng of Cambodia have been criticized for allegedly failing to conduct impartial investigations. Last week, Human Rights Watch (HRW) [advocacy website] demanded the resignation [JURIST report] of the two judges responsible for indictments at the Cambodian tribunal on Khmer Rouge [BBC backgrounder; JURIST news archive] war crimes. In April 2011, the judges declared that they had concluded their investigation into Case 003 [materials] and a formal closing order is expected to be issued soon. The judges are also expected to close and dismiss Case 004 [materials]. Should closing orders be issued in either case, the prosecutor can appeal to the pre-trial chamber.

In July, the UN denied reports [JURIST report] it instructed the ECCC to close further investigations into war crimes committed under the Khmer Rouge regime after the controversial closing of Case 003. Doubts about the legitimacy and independence of the ECCC have been raised since the decision to close ECCC Case 003. In May, a coalition of more than 30 rights groups and development organizations in Cambodia issued an open letter [JURIST report] urging the ECCC to embrace a greater degree of transparency. Earlier that week, ECCC judges ordered Co-Prosecutor Andrew Cayley to retract public statements requesting further investigation [JURIST report] into Case 003. Cayley said the information was released pursuant to tribunal rules "to ensure that the public is duly informed about ongoing ECCC proceedings." The judges, however, said Cayley breached the tribunal's confidentiality and ordered the retraction. The only ECCC conviction since its founding in 2006 is of Kaing Guek Eav [ECCC backgrounder; JURIST news archive], better known as "Duch," a former prison chief at the notorious Toul Sleng prison under the Khmer Rouge. In March, he appealed his 35-year sentence for war crimes and crimes against humanity handed down by the ECCC [JURIST reports] last July. The Khmer Rouge have been blamed for the deaths of some 1.7 million people [PPU backgrounder] from starvation, disease, overwork and execution between 1975 and 1979.




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UN calls for respect for human rights as Libya conflict winds down
Alexandra Malatesta on October 9, 2011 4:19 PM ET

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[JURIST] The United Nations (UN) [official website] called on all parties to the Libyan revolution [JURIST news archive] to maintain respect for human rights [press release] as the conflict winds down in Sirte [BBC backgrounder]. As the interim government forces push through the hometown of former Libyan leader Mummar Gaddafi [BBC profile; JURIST news archive], Secretary-General Ban Ki-moon's Special Representative Ian Martin [official profile] urged respect for the due process of law instead of seeking personal avengeance for alleged war crimes and other grave violations. UN officials also expressed concern for civilians who have chosen to remain in Sirte, which is seeing heavy street fighting, and have urged the continuance of medical aid and help by local communities and charities.

Harm to the civilian population has been a concern throughout the Libyan conflict. In August, Libyan Prime Minister Al Baghdad Ali Al-Mahmoudi [BBC backgrounder] requested that the UN create a "high-level commission" [JURIST report] to investigate alleged human rights abuses [Reuters report] by North Atlantic Treaty Organization (NATO) [official website] forces. 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] claiming Libyan authorities committed crimes against humanity, "as part of a widespread or systematic attack against a civilian population with knowledge of the attack."

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




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California governor vetoes affirmative action bill
Alexandra Malatesta on October 9, 2011 2:41 PM ET

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[JURIST] California Governor Jerry Brown [official website] Saturday vetoed [text, PDF] a bill [SB 185, PDF] that would have allowed public colleges and universities to consider demographic factors such as race during the admissions process. The bill, introduced by Senator Ed Hernandez [official website], would have effectively overturned [Daily Californian report] ballot measure Proposition 209 [text], which banned the use of affirmative action for state hiring, contracting, or university admission. The Governor said in his veto message to the Senate that although he agreed with the purpose [statement, PDF] of the bill, it is the role of the US Court of Appeals for the Ninth Circuit [official website] to decide the boundaries of Proposition 209:
I wholeheartedly agree with the goal of this legislation.... But while I agree with this legislation, I must return the bill without my signature. Our constitutional system of separation of powers requires that the courts -- not the Legislature -- determine the limits of Proposition 209.... Signing this bill is unlikely to impact how Proposition 209 is ultimately interpreted by the courts; it will just encourage the 209 advocates to file more costly and confusing lawsuits.
The Governor previously contested [opinion letter, PDF; JURIST report] Proposition 209 in 2009. The Berkeley College Republicans at the University of California Berkeley [academic website] released a statement praising [press release] the Governor's veto. The veto comes on the same day Governor Brown signed into law a bill allowing undocumented immigrants to receive financial aid [JURIST report] for college.

Affirmative action continues to be a controversial issue. Last month, the US Court of Appeals for the Sixth Circuit [official website] agreed to a rehearing en banc [JURIST report] to determine the constitutionality of an amendment to the Michigan Constitution banning affirmative action. In January, the US Court of Appeals for the Fifth Circuit [official website] unanimously ruled to uphold the affirmative action [JURIST report] policy of considering race in student admissions at the University of Texas at Austin (UT) [academic website]. In August of 2010, the Supreme Court of California [official website] held that a state ban on preferential hiring practices for minorities and women does not violate [JURIST report] the federal Constitution [text]. In November 2008, Colorado voters narrowly rejected [JURIST report] a ballot measure [Amendment 46 text and materials] to prohibit governmental agencies from discriminating or granting preferences on the basis of race and sex. While, a nearly identical measure passed [JURIST report] in Nebraska.




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US legal memo justifies killing of al-Awlaqi
Sarah Posner on October 9, 2011 12:02 PM ET

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[JURIST] An Obama administration legal memorandum from last year found that the killing of US citizen and senior al Qaeda [GlobalSecurity backgrounder] leader Anwar al-Awlaqi [BBC profile; JURIST news archive] would only be legal if it were not feasible to take al-Awlaqi alive. The memo last year followed months of legal debate regarding the decision to kill a US citizen without first having a trial. The secret document written by the Department of Justice (DOJ) [official website] justified the decision [NYT report] to kill al-Awlaqi despite an executive order banning assassinations and a federal law against murder. The memo may serve to resolve the legal debate and respond to public criticism over whether the president can order the killing of US citizens abroad as part of a counterterrorism measure [WP report]. The document may also serve as justification for allowing the US military and CIA to kill an American overseas based on the written approval from the DOJ. The Obama Administration still has not discussed its role in the drone attack killing al-Awlaqi.

Al-Awlaqi was killed by a CIA drone strike [JURIST report] in Yemen on September 30. 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 for attacks in the US. 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.




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California governor signs law providing financial aid to undocumented students
Sarah Posner on October 9, 2011 11:02 AM ET

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[JURIST] California Governor Jerry Brown [official website] signed [press release] the California Dream Act [AB 131, PDF] into law on Saturday, expanding financial aid to undocumented students. Under AB 131, high achieving students who are in the process of applying for citizenship are eligible to receive financial aid for college. The newly enacted law builds on AB 130, signed into law by Governor Brown on July 25, 2011, which made financial aid from private sources available to the same group of students. The former law required undocumented students to pay nonresident tuition at California Community Colleges and the California State University unless they were nonimmigrant aliens who attended high school in California for at least three years and graduated from a California high school or its equivalent. The former law also covered aliens without lawful immigration status if they filed a prescribed affidavit. The Dream Act amends the Donahue Higher Education Act to establish procedures that enable students who are exempt from paying nonresident tuition to apply for, and participate in, all student aid programs to the full extent that federal law permits.

Immigration has been a divisive issue across the US. In August, President Barack Obama announced major reforms [JURIST report] to the US's current immigration system, putting 300,000 illegal immigrants' cases up for review and temporarily halting their deportation. Many of the criteria allowing immigrants to stay in this country mirror portions of the federal Development, Relief and Education for Alien Minors (DREAM) Act [materials], which has languished in Congress for a decade. It attempts to provide amnesty for illegal immigrants who serve in the military or achieve a college education. Also in August, the Casa de Maryland immigrant rights group filed a challenge [JURIST report] to a public referendum over a Maryland law providing in-state tuition to undocumented college students. The group filed the challenge in the Maryland Circuit Court for Anne Arundel County [official website] after opponents of the Maryland DREAM Act [text, PDF; materials] collected enough signatures to put the law to a public referendum.




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US lawmakers introduce resolution to prevent sale of arms to Bahrain
Julia Zebley on October 8, 2011 2:57 PM ET

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[JURIST] Two congressmen on Thursday introduced a joint resolution [text, PDF] in each house of Congress to block a planned arms sale to Bahrain [JURIST news archive]. Senator Ron Wyden (D-OR) and Representative Jim McGovern (D-MA) [official websites] declared [press release] the bill as a reaction to a planned sale of $53 million worth of weapons to Bahrain, which was announced in mid-September [press release, PDF]. Wyden called for the US to sanction Bahrain for their human rights abuses in the face of peaceful revolution:
Selling weapons to a regime that is violently suppressing peaceful civil dissent and violating human rights is antithetical to our foreign policy goals and the principle of basic rights for all that the U.S. has worked hard to promote. The Arab Spring has encouraged the citizens of Bahrain to seek those same rights from their government and the U.S. should not reward a regime that actively suppresses its people. This resolution will withhold the sale of arms to Bahrain until the ruling family shows a real commitment to human rights.
The resolution has a number of stipulations for Bahrain to meet before arms sales can continue, including investigating human rights abuse allegations, ending torture and denial of medical aid, protecting the Shiite culture and religion and submitting to outside investigations and journalist inquiries. A vote has not been scheduled for the resolution, which must be passed by October 14 to stop the sale.

The situation in Bahrain continues to deteriorate. On Tuesday, a Bahrain civilian-military court sentenced 26 protesters to prison terms [JURIST report] ranging from 5-15 years, bringing the total number of protesters sentenced in the past week to 60. Those who were sentenced on Tuesday include prominent members of the Shiite political group who were among hundreds of protesters seeking greater rights for the Shiite majority. On Monday, nearly 40 protesters were sentenced [JURIST report], including university students, to sentences of 15-25 years for crimes ranging from rioting to attempted murder. Last week, the National Safety Court of Appeal sentenced [JURIST report] 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. Bahraini King Hamad bin Isa Al Khalifa [official profile] announced in August that he will dismiss charges against some of the protesters [JURIST report] detained for their participation in pro-democracy demonstrations. 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.




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Federal judge rules against EPA coal permit regulations
Erin Bock on October 8, 2011 2:20 PM ET

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[JURIST] A federal judge on Thursday ruled [judgment, PDF] against the US Environmental Protection Agency (EPA) [official website] regarding its process for granting permits used by coal companies for mountaintop removal mining in Appalachia. The EPA unveiled stricter guidelines in 2009 to issue permits to companies who sought to dump fill material from the removal mining into streams. The National Mining Association (NMA) and several other plaintiffs, including the West Virginia Department of Environmental Protection (DEP) [official websites], filed suit in 2010, alleging that the EPA exceeded its authority under section 404 of the Clean Water Act [text] by overstepping its role in the permitting process, which is largely handled by the US Army Corps of Engineers [official website]. The plaintiffs further argued that the EPA violated the Administrative Procedure Act [text] when it did not allow for notice and comment procedures in its rulemaking process. The court ordered that the 2009 guidelines be set aside and that all permitting be handled via the pre-2009 guidelines. West Virginia Governor Earl Ray Tomblin (D) [official website] applauded [press release] the court's decision, stating that the decision "confirmed [the state's] assertions against the EPA." The EPA dismissed the decision [WSJ report] as "procedural" and assured families in Appalachia that it did not affect the agency's authority under the Clean Water Act to protect public health.

Last month, the US House of Representatives [official website] passed a bill [JURIST report] that would effectively block a number of proposed EPA regulations aimed at reducing emissions. The Transparency in Regulatory Analysis of Impacts on the Nation Act 2011 would require the formation of a committee to perform economic impact analyses prior to promulgating any regulations. The possible effects to the economy of environmental regulations have made their passage and implementation difficult as of late. Earlier in September, 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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Rights groups call for China to release Nobel winner Liu
Julia Zebley on October 8, 2011 1:29 PM ET

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[JURIST] Three human rights groups on Friday called for the release of Nobel peace Laureate Liu Xiaobo [BBC profile; JURIST news archive], imprisoned on an 11-year sentence [JURIST report] in China for "inciting subversion of state power" and dissidence. Amnesty International (AI), Human Rights Watch (HRW) and Chinese Human Rights Defenders (CHRD) [advocacy websites] released simultaneous press briefings [CHRD report; HRW report; AI report] urging freedom for Liu, and his wife Liu Xia, who remains under house arrest. CHRD confirmed that Liu was released to attend his father's funeral, and was temporarily reunited with his wife. The groups contend this was done to deflect criticism on the eve of the 2011 Nobel peace prize [JURIST report]. The CHRD reported that China is attempting to legalize secret detentions.
To ensure that the law cannot be used as a shield to protect these activists from the state's arbitrary power, in August 2011 the Chinese government announced plans that would effectively legalize the practice of enforced disappearance. Among the wide-ranging proposed revisions to the Criminal Procedure Law (CPL), one of the most alarming changes is Article 73 of the draft, which governs the use of "residential surveillance" by the police. Instead of being detained in their homes as in ordinary cases, suspects accused of "endangering state security, terrorist crimes and major bribery crimes" could be held in "a specified residence." Similarly, police could subject suspects charged with "endangering state security and terrorist crimes" to residential surveillance without having to notify their families within 24 hours, as required in ordinary cases.
HRW asked that all governments attending the Nobel prize ceremony this year use it as a venue to call for China to release Liu and other political prisoners.

Liu has been one of China's most prominent dissidents. He spent two years in prison following the Tiananmen Square [BBC backgrounder] uprising, has long challenged China's one-party rule and co-authored Charter 08 [text], a petition calling for political reforms in the country. International organizations have been rallying for Liu's release since he was announced as the recipient of the Nobel Peace Prize [JURIST reports] in November. In August, the UN Working Group on Arbitrary Detention [official website] called for the immediate release of Liu, according to UN documents obtained by Freedom Now [advocacy website]. The documents said that the Chinese government responded by saying the conviction was in accordance with Chinese criminal codes and consistent with the rule of law. Last December, Liu was awarded the 2010 Nobel Peace Prize in absentia [JURIST report] at a ceremony in Oslo, Norway. The Chinese government denounced the decision calling it "contrary to the purpose of the Nobel Prize," and censoring the announcement, blocking internet searches and international broadcasts about it and even turning off phones of people who text messaged the news.




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Three former Nigeria state governors arrested for fraud
Erin Bock on October 8, 2011 12:13 PM ET

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[JURIST] The Nigerian Economic and Financial Crimes Commission (EFCC) [official website] arrested three former governors of Nigerian states on Thursday for allegedly embezzling 101 billion naira (USD $615M). Officials arrested [Nigerian Observer report] former Ogun state governor Gbenga Daniel, former Oyo state governor Adebayo Alao-Akala and former Nasarawa state governor Ali Akwe Doma for interrogation purposes. The arrests were in response to petitions filed by citizens to EFCC alleging [BBC report] that the former leaders abused state contracts and used government money for personal purposes. The ex-governors are expected to be in court within the next few days.

In August, Human Rights Watch (HRW) [advocacy website] reported [JURIST report] that corruption in the Nigerian government has become endemic and criticized the EFCC for ineffective practices, including slow-moving trials and small sentences. Earlier in August, the Nigerian Ebonyi State Commissioner of Justice and Attorney General, Ben Igwenyi, called for the establishment of a special court to hear corruption cases [JURIST report]. He argued that corruption cases in the regular courts take too long to process, causing people to forget about them and perpetuating the appearance of corruption in the government. He proposed merging the Independent Corrupt Practices and other Related Offences Commission (ICPC) [official website], which investigates corruption, and the EFCC to form an anti-corruption court. Corruption remains a problem in Nigeria as the EFCC arrested [JURIST report] outgoing speaker of the House of Representatives Dimeji Bankole in June on allegations of fraud. He is believed to have secured a USD $ 66 million loan on top of his normal salary. In March, HRW and the Nigerian Bar Association [association website] called for Nigeria's National Assembly to pass legislation creating a special electoral offenses commission [statement; JURIST report] tasked with investigating and prosecuting election-related abuses, including violence. In 2006, then Nigerian vice president Atiku Abubakar was charged with more than a dozen counts of corruption [JURIST report] in the Code of Conduct Tribunal, a special corruption court that has the power to strip elected officials of immunity. The charges were related to the alleged diversion of $125 million dollars of public money to private interests, as well as allegations of receiving more than $4.6 million dollars in bribes.




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UK prevents arrest of Israel ex-foreign minister
Ashley Hileman on October 7, 2011 4:22 PM ET

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[JURIST] The UK Foreign and Commonwealth Office (FCO) [official website] on Thursday declared that former Israeli foreign minister Tzipi Livini [official website, in Hebrew] enjoys temporary diplomatic immunity during her visit to London, thereby sparing her from arrest. Livini risked arrest after an application was made [press statement] on Tuesday to the Director of Public Prosecutions (DPP) [official profile], seeking his consent to a private prosecutor for a warrant to arrest her based on war crimes charges relating to Israel's Gaza Offensive [JURIST news archive]. A Palestinian police officer whose brother was killed in the attacks on Gaza, submitted the application [Guardian report], which was supported by a "body of information" requested by the Crown Prosecution Service (CPS) [official website]. However, according to the CPS, this information, though carefully considered, was still not sufficient to support a "realistic prospect of conviction against Ms. Livini in relation to the alleged offenses." Additionally, the CPS received a certificate indicating that the FCO had consented to the visit as a "special mission," a designation that the High Court ruled a court was not able to call into question. As a result, Livini was able to complete her visit [FCO news report] with Foreign Secretary William Hague to discuss UK-Israel relations. A previous trip scheduled for December 2009 was canceled [JURIST report] after a British magistrate court issued, and later revoked, an arrest warrant for her on the war crimes charges.

Last month, the UK Parliament [official website]approved [JURIST report] the Police Reform and Social Responsibility Act [materials], which makes 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 DPP. 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.




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DOJ asks federal appeals court to block Alabama immigration law
Michael Haggerson on October 7, 2011 3:40 PM ET

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[JURIST] The US Department of Justice (DOJ) [official website] filed a motion in the US Court of Appeals for the Eleventh Circuit [official website] Friday to halt enforcement [motion, PDF] of a controversial Alabama immigration law [HB 56 text] that expands restrictions on undocumented immigrants. The law requires school officials to verify the immigration status of children and parents, authorizes police to detain an individual and ask for papers if the officer has "reasonable suspicion" that the driver is in the country illegally, and requires businesses to use the federal E-Verify system [official website] to determine whether potential employees are legal residents. The DOJ argues that the "state regime contravenes the federal government's exclusive authority over immigration" and that:
H.B. 56 creates a panoply of new state offenses that criminalize, among other things, an alien's failure to comply with federal registration requirements that were enacted pursuant to Congress's exclusive power to regulate immigration, an alien's attempt to solicit or perform work, and an alien's attempt to interact with state or local government. The law also invites discrimination against many foreign-born citizens and lawfully present aliens, including legal residents, by making it a crime for any landlord to rent housing to an unlawfully present alien, invalidating all contracts with unlawfully present aliens, and even targeting school-age children with an alien registration system.
Two similar motions for injunction were denied by the US District Court for the Northern District of Alabama [official website] earlier this week and last month [JURIST reports]. Alabama state officials defend the law [JURIST report] and argue that the state law is not preempted by federal immigration law and that the text reflects a "spirit of cooperation with the federal government." The state officials point out that the law contains mechanisms safeguarding against unlawful discrimination on the basis of race, color, or national origin and allegations suggesting provisions of the law would deter students from enrolling in school are speculative.

The DOJ, joined by several rights groups, appeared before the court in August [JURIST report] to make arguments against the law's enactment, at which point Chief Justice Sharon Lovelace 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]. From when the legislation was signed into law [JURIST reports] in June, 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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Nobel Peace Prize awarded to women's rights activists
Michael Haggerson on October 7, 2011 2:26 PM ET

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[JURIST] The Norwegian Nobel Committee [official website] awarded the 2011 Nobel Peace Prize [press release; video] on Friday to Ellen Johnson Sirleaf, Leymah Gbowee and Tawakkul Karman for their efforts in promoting women's rights. Sirleaf, known as the "Iron Lady," is the president of Liberia [official profile] and the first woman elected to head of state in Africa [BBC profile]. Gbowee [Hunt Alternatives Fund backgrounder] is a founder and the executive director of the Women Peace and Security Network Africa [advocacy website] and is credited with organizing a peace movement [My Hero backgrounder] which eventually ended the Second Liberian Civil War [Global Security backgrounder]. Karman, the first Arab woman to win the Nobel Peace Prize [AP report], is a Yemeni activist [TIME backgrounder] and chairwoman of Women Journalists Without Chains [advocacy website]. The Chairman of the Norwegian Nobel Committee, Thorbjorn Jagland, stated that the purpose of giving the award to the three women's rights activists [video] was to bring more attention to violence against women and to encourage women to have a greater role in "peace processes and peace building." He further stated that this was intended to be a "strong signal to the Arab world."

Despite her work in the area of women's rights, Sirleaf has become a controversial figure in African politics. Unemployment in Liberia is still at 80 percent [Al Jazeera report], and political opponents have accused her of using government money to fund her campaign, which she denies. Further, the Truth and Reconciliation Commission of Libera [official website] recommended in 2009 that Sirleaf be subject to sanctions and a 30-year ban on holding public office [JURIST report] for providing financial support to former Liberian president Charles Taylor [BBS profile]. Sirleaf was one of 50 individuals named in the report. Jagland stated that Karman was awarded one-third of the prize in order to associate some of the money with the uprisings sweeping through the Arab world, called the Arab Spring. Karman strongly opposes Yemeni President Ali Abdullah Saleh [official website, in Arabic; JURIST news archive], but has controversial ties to Islah [Project Yemen backgrounder], a party whose chief member is Abdul Majeed al-Zindani, a former adviser to Osama bin-Laden [JURIST news archive].




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Federal judge again declines to hold CIA in contempt for destruction of interview tapes
Ashley Hileman on October 7, 2011 1:45 PM ET

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[JURIST] A judge for the US District Court for the Southern District of New York [official website] on Wednesday again refused [decision, PDF] to hold the US Central Intelligence Agency (CIA) [official website] in contempt for destroying videotapes of detainee interviews following the events of 9/11 [JURIST news archive]. Judge Alvin Hellerstein previously ruled [JURIST report] on this issue in August. The case against the CIA, brought by the American Civil Liberties Union (ACLU) [advocacy website], sought a variety of forms of relief including an order requiring the individuals responsible for the destruction to be identified as well as an order that the agency be held in contempt. Hellerstein however, finding that the plaintiffs had already received sufficient remedial relief, denied all requests with the exception of attorneys' fees and costs. In support of his decision, Hellerstein distinguished between civil contempt, the purpose of which is to coerce future compliance, and remedy past noncompliance and criminal contempt, which serves to punish the violator. In holding that these goals had already been achieved and no further action was required, the judge cited the CIA's "massive production" of documents related to the videotapes' destruction and its recent adoption of new protocols to insure against similar incidents in the future. Regarding the protocols, Hellerstein wrote:
In my opinion, contrary to plaintiff's view, the CIA's new protocols would have a remedial and deterrent effect should a CIA official think to destroy documents. The protocols should lead to better communication and more complete written records within the Agency and across the government when an issue of document destruction or retention arises within the Agency. The CIA's new protocols should lead to greater accountability within the Agency and prevent another episode like the videotapes' destruction.
Hellerstein also determined the ruling was appropriate given the possibility that the individuals responsible for destroying the tapes may not have been aware of the court orders requiring production.

In January, Hellerstein told the CIA that it must investigate the destruction of the interrogation tapes [JURIST report] and prevent similar incidents from happening in the future. Internal CIA documents [part 1, PDF; part 2, PDF; part 3, PDF] released last year reveal that the former head of the agency Porter Goss may have agreed to the destruction [JURIST report] of the interrogation videotapes [JURIST news archive]. According to redacted documents [text, PDF] filed in March 2009, 12 of 92 videotapes destroyed by the CIA [JURIST report] contained evidence of "enhanced interrogation techniques." The US Department of Justice (DOJ) [official website] had acknowledged [letter, PDF; JURIST report] in March 2009 that the CIA destroyed 92 videotapes of high value terrorism suspect interrogations, in response to an August 2008 judicial order [text, PDF] that the CIA turn over information regarding the tapes or provide specific justifications on why it could not release the information. The August 2008 order came in response to a December 2007 ACLU motion [text, PDF] that the CIA be held in contempt of court for not providing information on the tapes during a Freedom of Information Act (FOIA) [text] lawsuit [ACLU materials] brought by the organization in an effort to access government materials on the interrogations.




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Federal judge clears path for appeal of Indian trust settlement agreement
Hillary Stemple on October 7, 2011 10:18 AM ET

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[JURIST] A judge for the US District Court for the District of Columbia [official website] on Wednesday ruled [judgment, PDF] that challengers of the $3.4 billion settlement agreement [JURIST report] in the American Indian trust class-action lawsuit [backgrounder] will not be required to put up a bond before proceeding with appeals, clearing the way for appeals of the settlement to begin. Six notices of appeal have been filed in the case since an agreement was reached in June. Plaintiffs in the lawsuit had requested that appellants be required to post an $8.3 million bond pursuant to Rule 7 of the Federal Rules of Appellate Procedure [text], because the appeals will "delay indefinitely class members' relief." The plaintiffs further asserted that a delay in disbursement of the funds will deny some members of the class any relief because they are elderly and likely to die before the appeals are settled. Challengers to the settlement argued that the costs put forth by the plaintiffs were exaggerated, and that the appeals are not frivolous and will be brought in good faith. Judge Thomas Hogan denied the plaintiffs' request for a bond stating that the request was misleading and the monetary amounts put forth by the plaintiff's, "exaggerated." Hogan chided plaintiffs' attorneys for the content of their motions, stating:
While the Court is sympathetic to the plaintiffs' concern that the appeals will delay the administration and distribution of the settlement to so many people who have waited so long for justice, that does not translate into a willingness by this Court to quietly overlook the misleading case citations and unsupported legal argument throughout the plaintiffs' motions and reply br