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Legal news from Tuesday, October 18, 2011




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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