November 2011 Archives


Senate rejects amendment to remove detainee provision in defense spending bill
Jamie Reese on November 30, 2011 2:54 PM ET

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[JURIST] The US Senate [official website] voted Tuesday to reject an amendment [S AMDT 1064] to the National Defense Authorization Act for 2012 [SB 1867, PDF] that would have struck a provision authorizing the president to use "all necessary and appropriate force" to detain individuals suspected of terrorism. The amendment, authored by Senator Mark Udall and proposed by Senator Rand Paul [official websites], suggested to institute a timeline to allow further study and investigation on the issue of counterterrorism by Congress. The amendment was rejected by a 67-30 vote [roll call, text], allowing the controversial provision to remain in the act. The provision grants the military complete custody and control over terror suspects and grants authority to Attorney General Eric Holder [official website] over whether suspects should be tried in military or civilian courts. Opponents of the provision fear it could be applied to US citizens threatening their constitutional liberties. Supporters argue that the idea of an American citizen suspected of aiding al Qaeda [GlobalSecurity backgrounder; JURIST news archive] not getting due process is simply a lie. The entire bill is now under consideration by the Senate. If passed, it will be sent to the White House, which previously released a statement of administration policy [text, PDF] warning that President Barack Obama [official website] could veto the bill [JURIST report] if it "challenges or constrains the President's critical authorities to collect intelligence, incapacitate dangerous terrorists, [or] protect the Nation." The White House protested that the FBI should have unrestricted access and interrogation rights over domestically detained al Qaeda suspects, rather than the military.

The provision was approved [JURIST report] earlier this month by the Senate Armed Services Committee (SASC) [official website] in a unanimous vote after disagreements regarding the provision had blocked their passage for months [CNN report]. The passage by the SASC came shortly after an American Civil Liberties Union (ACLU) [advocacy website] report [PDF] claiming that the US is diminishing its "core values" [JURIST report] with regard to various counterterrorism measures put in place during the 10 years since the 9/11 attacks [JURIST backgrounder]. To support this contention, the report cites to US policies regarding indefinite military detention for terrorism suspects, the use of torture on terrorism suspects and enemy combatants, racial and religious profiling and domestic surveillance and wiretapping. The report posits that certain US policies run deeper than what is known by the American people, civil liberties continue to be violated in secret and that future violations are imminent. The ACLU acknowledged that the government has sought to cease certain questionable practices, citing President Barack Obama's directive to close the Guantanamo Bay military prison [JURIST news archive], but stated that other questionable practices remain "core elements of [US] national security strategy today."




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Facebook and FTC settle privacy dispute
Katherine Getty on November 30, 2011 12:22 PM ET

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[JURIST] The Federal Trade Commission [official website] (FTC) and Facebook [website] settled [settlement, PDF] on Tuesday regarding Facebook's practices relating to user privacy. The FTC filed a complaint against Facebook alleging that privacy settings on the site failed to apply to third party sites and applications [complaint, PDF]. Under the settlement agreement Facebook must make users fully aware [press release] of all changes in privacy settings that would override their previously consented to settings. Additionally, Facebook will be subject to third party audits every two years for the next 20 years. Mark Zuckerberg, the founder of Facebook, released a statement [blog post] admitting that Facebook had made mistakes, but promised to do better in the future.
Facebook has always been committed to being transparent about the information you have stored with us - and we have led the internet in building tools to give people the ability to see and control what they share. But we can also always do better. I'm committed to making Facebook the leader in transparency and control around privacy.
Now that the FTC has proposed the settlement, the public has 30 days to comment on it. After that, the FTC will decide whether to make the proposed settlement final.

In September, members of the Congressional Privacy Caucus [official website] asked the FTC to look into Facebook's privacy settings, including allegations that Facebook continued to track user's activities after they logged out [JURIST report] of the website. This is also not the first time Facebook has been the target of governmental review. In August, the Hamburg Commissioner for Data Protection and Freedom of Information [official website, in German] accused Facebook of violating European data protection laws [JURIST report] through its facial recognition feature that automatically recognizes and "tags" users when others upload photos of them. In December 2010, South Korea alleged that Facebook failed to comply [JURIST report] with privacy laws and expressed concern over the handling of personal information and data. The Canadian Office of the Privacy Commissioner [official website] announced in January 2010 that it was launching a probe [JURIST report] into Facebook's privacy setting as a result of the new feature that allowed people to alter it, but left the default setting very much public.




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ICC takes former Ivory Coast president Gbagbo into custody
Sung Un Kim on November 30, 2011 12:14 PM ET

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[JURIST] The International Criminal Court (ICC) [official website] took former Ivory Coast president Laurent Gbagbo [BBC profile] into custody [ICC press release] on Wednesday for his upcoming initial appearance before the court. He was surrendered to the ICC by the national authorities of the Ivory Coast [BBC backgrounder] on Tuesday and brought to the Netherlands in response to a warrant of arrest [text, PDF] that was issued by the judges last week. The warrant charged Gbagbo with four counts of crimes, including murder, persecution, inhumane acts, and rape and other forms of sexual violence allegedly committed during last year's post-election violence [JURIST news archive]. The prosecution believes that Gbagbo is responsible for the crimes as an indirect co-perpetrator, alleging that the violence by pro-Gbagbo forces was committed through an "organisational policy" under his command. Gbagbo is the first of the several suspects related to the post-election violence who was taken into custody by the court. Gbagbo's initial appearance is scheduled for December 5.

When the Gbagbo refused to step down from his position as a president after his defeat in the November election by the current president Alassane Ouattara [BBC profile] violence resulted due to the arising fight between the two forces. Gbagbo was forced out and captured [JURIST report] in April. Last month, the ICC's Chief Prosecutor Luis Moreno-Ocampo [official profile] stated [JURIST report] that the court will focus their investigations specifically on three to six suspects most responsible in the alleged involvement in the post-election violence after he arrived [JURIST report] in the Ivory Coast. The investigation was set in motion after the ICC granted [JURIST report] the prosecution's request to look into the crimes committed during the post-election period. In the same month, the Human Rights Watch (HRW) [advocacy website] released a report [JURIST report] related to the said incident and urged the Ivory Coast government to prosecute both sides of the post-election violence equally. Ivory Coast initiated a Truth and Reconciliation Commission [JURIST report] last month in order to resolve the conflicts arising out of the post-election violence in response to UN's call for investigation [JURIST report] in June and to HRW's request [JURIST report] for the same.




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Queensland passes civil unions law
Max Slater on November 30, 2011 11:53 AM ET

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[JURIST] The Queensland Parliament [official website] passed legislation [text, PDF] on Wednesday to legally recognize civil unions between same-sex couples. Queensland [official website] has joined its fellow Australian states of Tasmania, Victoria and the Australian Capital Territory (ACT) [JURIST reports] in recognizing same-sex unions. The bill passed [transcript, PDF] with 47 MPs voting in favor and 40 voting against it. Speaking in support of the bill on the floor of Parliament, Queensland Premier Anna Bligh [official website] declared:
Tonight, the bill that is before the parliament seeks to strike a blow against prejudice and to strike a blow against discrimination. […] [T]hat is what this bill is about: dignity and respect for relationships that are precious in their own right. The arguments we hear from the opposition simply do not hold any weight. The first argument is that somehow this issue is not a priority—that is, that governments should only ever do things that are on the top of the list, that you should never do things that might be important to the minority, that governments should never concern themselves with issues that matter to some people but not everybody. I would argue that the fight against discrimination should be a priority of any government. I make the point that it may not be a priority for every member on the other side and it may not be a priority for every Queenslander, but it is a priority for those people who live with discrimination every single day of their lives.
Health Minister Geoff Wilson [official website] expressed his opposition to the legislation on religious grounds, saying that although he supports same-sex rights, his faith prevents him from endorsing civil unions: "I do not believe we should institutionalise and formalise a new type of relationship outside of marriage for couples, whether they are of the same sex or opposite sex." Two weeks ago, Australian Prime Minister Julia Gillard [official website] called on Australia's Parliament [JURIST report] to vote on whether or not to legalize same-sex marriage nationwide. Parliament has yet to take up the issue.

Australia historically has had a tumultuous past regarding the legal rights of same-sex couples. In May 2008, the Australian government abandoned a proposal [JURIST report] to legally recognize same-sex civil union ceremonies after the Australian federal government threatened to veto Civil Partnerships Bill 2006 [legislative materials] if it passed the Legislative Assembly [official website]. ACT Attorney General Simon Corbell said that the self-governing territory will now move to legalize civil partnerships without ceremony so that same-sex couples can have access to Commonwealth pensions, tax and social security benefits. The Civil Partnerships Bill was introduced after an earlier civil unions law [legislative materials] was actually overturned by the federal government [JURIST report] because that law's attempt to equate civil unions with marriage was determined to be unacceptable. In April of 2008, the Australian government introduced legislation to amend over 100 federal laws [JURIST report] to remove discrimination against same-sex couples but continued to bar same-sex marriage.




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Lebanon contributes money necessary to fund UN tribunal
Ashley Hileman on November 30, 2011 11:32 AM ET

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[JURIST] Lebanese Prime Minister Najib Mikati on Wednesday announced that the country has made the payment required to help fund the UN Special Tribunal for Lebanon (STL) [official website; JURIST news archive], which has been tasked with investigating the assassination of a Lebanese statesman. According to Mikati, Lebanon transferred the $36 million [AP report] it was required to contribute in an effort to demonstrate the country's commitment to "international obligations and the principles of justice." The tribunal has been attempting to investigate and hold accountable those involved in the killing of former Lebanese prime minister Rafik Hariri [BBC profile; JURIST news archive], who died as the result of a suicide bomb which also killed 22 others. This investigation has been controversial in Lebanon, especially with regards to the question of the appropriate level of involvement and cooperation that is warranted from Lebanese officials. Since the initiation of the investigation, the court has indicted four members of the Hezbollah group, which maintains that it was not involved in the bombing.

On Monday, the president of the tribunal, Judge David Baragwanath [official website], issued a statement defending his program [JURIST report] following a visit to Lebanon. Tribunal Vice President Judge Ralph Riachi [official website] accompanied Baragwanath on the visit, where they saw a spirit of compliance that made them optimistic about their chances for success. The Tribunal is composed of professional judges selected internationally and includes senior members of the Lebanese judiciary. Baragwanath promised to conclude their job "as swiftly as fairness allows." The STL has faced great difficulty [JURIST report] trying to arrest the members of Hezbollah in Lebanon where the Shiite militia Hezbollah, backed by Iran, is the country's most powerful political force. If the trial commences, this would be the first trial in absentia at an international court since the prosecution of Nazis during the Nuremberg trials.




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Challenge to New York same-sex marriage act allowed to proceed
Jamie Davis on November 30, 2011 10:07 AM ET

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[JURIST] A judge for the New York Supreme Court for Livingston County [official website] has ruled [order, PDF] that a constitutional challenge to the state law legalizing same-sex marriage may proceed. Judge Robert Wiggins refused to dismiss the lawsuit [JURIST report] filed in July by New Yorkers for Constitutional Freedoms [advocacy website, press release, PDF] on the theory that there is a justiciable issue as to whether Governor Andrew Cuomo [official website] committed a procedural violation in passing New York's Marriage Equality Act [text, PDF] earlier this year. By invoking a rule in which the governor may certify facts necessitating an immediate vote on the bill, Cuomo circumvented the state constitution's requirement that any bill be printed and on the desks of legislators for three days before any vote. The State Attorney General's Office [official website] filed briefs in an effort to dismiss the suit, but the judge held there were not sufficient facts before the court to determine the legitimacy of the plaintiffs' allegation that Cuomo's private meeting with Republican members of the Senate, in which he urged them to "break the party's position and vote for the bill" prior to its passage, constituted a violation of the state's Open Meetings Law [text]. Wiggins also criticized Cuomo for certifying in the first place that the bill needed to be voted on immediately, calling the cite by the governor "disingenuous" but noting that the court "is reluctantly obliged to rule that the message of necessity submitted by the Governor was accepted by vote of the Senate, and is NOT within this Court's province to nullify." To avoid the 72-hour rule, Cuomo cited the need to immediately remedy the denial of more than 50,000 same-sex couples the "critical protections of different-sex couples, including hospital visitation, inheritance and pension benefits." In his decision, Wiggins emphasized that the court was not expressing any opinion on same-sex marriage, but was only considering issues concerning the procedures the New York Legislature followed when passing the Marriage Equality Act.

Cuomo signed legislation allowing same-sex couples to marry [JURIST report] in the state on June 24. The New York State Senate [official website] had passed the Marriage Equality Act 33-29 earlier that same day following weeks of negotiations. The act eliminates any legal distinctions between opposite-sex and same-sex marriages [JURIST news archive] and specifies that no clergy member will be forced to perform a marriage ceremony and that any refusing clergy member will not be subject to legal action. The New York State Assembly passed the bill [JURIST report] earlier in the month 80-63, and the law went into effect on July 25. Shortly after the bill's passage William Duncan, Director of the Marriage Law Foundation argued that the legislation sets a bad precedent and is possibly unconstitutional [JURIST comment] due to the very violations of procedural requirements that have allowed the challenge to proceed. The New York State Assembly had passed same-sex marriage bills before in 2007 and in 2009, but the bills were unable to pass the Senate [JURIST reports].




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Chile requests extradition of former US Navy captain for Pinochet-era crimes
Ashley Hileman on November 30, 2011 9:16 AM ET

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[JURIST] A Chilean judge on Tuesday issued an indictment against former US Navy Captain Ray Davis, which included a request that he be extradited to Chile. The indictment charges [CNN report] Davis with the homicides of journalist Charles Horman and US university student Frank Teruggi. Both crimes were alleged to have been committed during the 1973-1990 regime of General Augusto Pinochet [BBC obituary; JURIST news archive]. Davis served as a commander of a US military mission in Chile in 1973 when a coup [BBC backgrounder] ensued that resulted in the ousting of former socialist president Salvador Allende [BBC profile] and the seizure of power by Pinochet. It is alleged that Horman and Teruggi, who were being monitored by US agents as part of a secret investigation into the actions of Americans in Chile, were executed after being arrested during the coup. Davis is accused of having had the power to stop the executions, but failing to do so. His whereabouts are currently unknown, and he has previously denied any involvement in the killings. Retired Chilean army Brigadier Pedro Espinoza Bravo has also been charged in the murders.

Last January, a Chilean Supreme Court [official website, in Spanish] judge ordered an investigation [JURIST report] into the death of Allende during the 1973 coup. Since the coup, Allende's death has been ruled a suicide. Allende, a Marxist, was met with opposition after winning the 1970 elections in Chile from those fearing his presidency would support a pro-Soviet communist government. The 1973 coup, backed by the US [JURIST report], was followed by a 17-year military regime led by Pinochet. The investigation into Allende's death is part of a larger probe into the military dictatorship of Pinochet. Prosecutor Beatriz Padrals will investigate 726 cases of alleged human rights abuses allegedly committed during the Pinochet regime. Hundreds of Chilean officials are also under investigation for human rights abuses committed under Pinochet, including the so-called "Caravan of Death" [BBC backgrounder, JURIST news archive] following the coup, the death or disappearance of more than 3,000 people and 28,000 cases of alleged torture. Pinochet died [JURIST report] before ever facing trial for any of the crimes that were committed during his dictatorship.




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Supreme Court hears arguments on Chapter 12 bankruptcy, insider trading
Julia Zebley on November 30, 2011 6:48 AM ET

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[JURIST] The US Supreme Court [official website] heard oral arguments [day call, PDF] in two cases on Tuesday. In Hall v. US [transcript, PDF; JURIST report], the justices heard arguments on a conflict between tax law and bankruptcy procedures, regarding the sale of family farms under Chapter 12 of the Bankruptcy Code [text]. The Hall family, after filing bankruptcy for their farm, found a purchaser who paid more than the value of their debt. As a result, they incurred a significant capital gains tax of $29,000, which would typically go to the IRS, but a recent provision [11 USC §§ 1222(a)(2)(A)] to Chapter 12 deems government interests as an unsecured creditor on the Chapter 12 estate, to be wiped away in the bankruptcy. The Halls' attorney argued for this reading of the new provision, as well as referring to the legislative history of the law, which was intended to aid farmers going through bankruptcy by protecting them from the capital gains tax. The Solicitor General argued that the tax was a post-bankruptcy gain and thus not affected by the Chapter 12 statute, as well as being a debt created by the debtor, rather than the estate in bankruptcy. Justice Elena Kagan commented on the dichotomy between Congess' intent to help farmers and the IRS proposed theory of what the law means: "But there's every reason to think, Mr. Shah, that what Congress was worried about here was cases in which the bankruptcy plan would not be approved at all because there were very high capital gains taxes that would result from a sale; and that that was the problem that everybody was focused on, was making sure that farmers could take advantage of section 12. So it's a little bit odd—it's actually more than a little bit odd. It's a lot odd to read the statutes to apply not in that context, but only as to people who have somehow managed to sell their property, you know, 18 months before going into bankruptcy."

In Credit Suisse Securities LLC v. Simmonds [transcript, PDF; JURIST report], the justices considered when the statute of limitations for reporting insider trading begins. The Securities Exchange Act of 1934 [§ 16(b)] states that the statute of limitations begins "more than two years after the date such [profits from insider trading] was realized." Attorney for Vanessa Simmonds, who filed 54 complaints against Credit Suisse, which were rejected on varying grounds including statute of limitations, argued that the statute of limitations can be tolled to include the discovery of the trading or even the filing of a report about the illegal action. This view was endorsed by the Ninth Circuit's ruling [text] that led to the Supreme Court. Petitioners argued for a strict interpretation of the law where the statute of limitations runs firmly from the date of the alleged misconduct. The Solicitor General interceded to argue a third option, that it tolls when a reasonable person should have known about the incident. Chief Justice John Roberts did not participate in the hearing of this case.




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Nobel peace laureate urges ICC investigation into former Yemen regime
Brandon Gatto on November 29, 2011 2:38 PM ET

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[JURIST] Nobel peace laureate Tawakkul Karman [BBC profile; Nobel profile] on Monday uged the International Criminal Court (ICC) [official website] to conduct an investigation into the violent crackdown on dissent and alleged human rights violations by the country's former president, Ali Abdullah Sakeh [official website, in Arabic; JURIST news archive]. Although Karman presented [AP report] ICC prosecutor Luis Moreno-Ocampo with a file on crimes she believes were committed by Saleh's regime, the Nobel laureate was also quick to acknowledge that her plea will likely fail due to the fact that Yemen has not signed the court's founding treaty, the Rome Statute [text, PDF], and is therefore not a member of the ICC. Consequently, the only way the prosecutor can begin such an investigation is if the UN Security Council [official website] instructs him to do so. While the Security Council has yet to make such an order, it has issued a statement on Yemen [press release] reiterating that "all those responsible for violence, human rights violations and abuses should be held accountable." Saleh stepped down as Yemen's president last week in a deal that would grant immunity to the country's former leader, prompting Karman to add that stronger mechanisms are needed to account for leaders who turn on their own people to remain in power.

Karman, a Yemeni journalist and activist, won her Nobel Peace Prize [JURIST report] for aiding the protest movement in Yemen that forced Saleh from the presidency. While Karman will have to wait for further action by the UN, the Security Council in September called on Yemen to comply with international law [JURIST report] and end ongoing violence against protesters that resulted in the deaths of at least 49 people [Al Jazeera report] shortly following Saleh's return as president after a three-month absence. Also in September, the UN Office of the High Commissioner for Human Rights [official website] urged an intervention [JURIST report] in Yemen after verifying that the Yemeni government was indeed firing on peaceful protesters. Saleh clung to the presidency throughout nearly 10 months of protests and violence despite agreeing to step down [JURIST report] in April, shortly following his attempt to remove presidential term limits and expand his political authority.




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Nigeria Senate approves bill criminalizing same-sex marriage
Jamie Reese on November 29, 2011 2:02 PM ET

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[JURIST] The Nigerian Senate [official website] passed a bill [SB 05] Tuesday that makes it illegal for same-sex couples to marry or for an individual to aid in the marriage of same-sex couples. The bill explicitly states that marriages entered into by persons of the same gender are prohibited and will not be recognized as valid, even if the marriage certificate is obtained in a foreign country. Individuals who enter into a same-sex marriage are liable for three years imprisonment each, and any person or group who aids a same-sex marriage contract is liable for a term of imprisonment of five years, a fine or both. International opposition to the bill was recognized by lawmakers, but Senate President David Mark [official website] said that Nigeria would not bow to international pressure [AP Report] on any legislation. The bill now must be passed by the Nigerian House of Representatives and be signed by President Goodluck Jonathan [official websites] before becoming law.

Most African nations, excluding South Africa, have criminalized same-sex marriage [JURIST news archive], and Nigeria in particular has long discriminated against gays and lesbians. Earlier this month, Australian Prime Minister Julia Gillard [official website] proposed a vote on same-sex marriage, and Brazil granted its first citizenship based on same-sex marriage [JURIST reports]. In August, Chilean President Sebastian Pinera [official profile, in Spanish] proposed legislation that would legalize same-sex civil unions [JURIST report]. In June, the UN Human Rights Council (UNHRC) [official website] passed its first gay rights resolution [JURIST report]. Despite these advances, other countries have stood strongly against same-sex marriage. In April, Hungary added a prohibition against gay marriage [JURIST report] to its constitution, and in January, France upheld a same-sex marriage ban [JURIST report]. As of a 2011 International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) [advocacy website] State-Sponsored Homophobia report [text, PDF], 76 countries still criminalize same-sex relationships, and five enforce the death penalty against homosexuals.




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Federal judge blocks North Carolina 'choose life' license plates
Max Slater on November 29, 2011 12:31 PM ET

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[JURIST] A judge for the US District Court for the Eastern District of North Carolina [official website] ordered an injunction on Monday to prevent North Carolina from issuing specialty license plates that display a pro-life message, signifying a victory [press release] for the American Civil Liberties Union of North Carolina Legal Foundation (ACLU-NCLF) [advocacy website]. The judge declared that the "Choose Life" license plates were an expression of private speech rather than government speech which would have allowed the North Carolina General Assembly [official website] to regulate the message. The judge's ruling was a response to the lawsuit [JURIST report] filed by ACLU-NCLF claiming that the legislature's authorization of the June bill [HB 289 materials] violates the First Amendment [text] guarantee of free speech by supporting a pro-life message while refusing to approve an additional license plate reading 'Respect Choice' which would indicate advocacy of reproductive rights. Katy Parker, the political director for the ACLU-NCLF, praised the court's decision:
This case is ultimately about free speech and equal treatment for all North Carolinians, regardless of their point of view on abortion. The state should not be allowed to use its authority to promote one side of a debate while denying the same opportunity to the other side. We look forward to continuing our arguments in this case, and hope the court agrees that the First Amendment prohibits the blatant type of viewpoint discrimination the state has proposed through this one-sided license plate scheme.
A federal court struck down similar pro-life license plate messages in South Carolina, ordering the state to pay Planned Parenthood [advocacy website] for legal fees.

Abortion continues to be an extremely controversial issue in North Carolina. In October, a federal district court judge blocked [JURIST report] a provision of a state abortion law [HB 854 materials] that required a physician to perform an ultrasound and describe the images to the patient. This law, known as the "Woman's Right to Know Act" also requires a 24-hour waiting period for women seeking an abortion. In June, North Carolina Governor Beverly Perdue [official website] vetoed the bill [JURIST report], calling it "a dangerous intrusion into the confidential relationship that exists between women and their doctors." In July, however, both the House and Senate [JURIST reports] voted to override the veto, allowing the legislation to become North Carolina law. Opponents of the law have called it "draconian" and have stated that women seeking abortions will face dramatic changes once the law takes effect, while supporters contend that the new law will give women the opportunity to "know all the facts" about abortion.




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Federal judge blocks Citigroup-SEC settlement
Drew Singer on November 29, 2011 11:55 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 blocked a proposed $285 million settlement with Citigroup Inc [corporate website] over the sale of toxic mortgage debt. The US Securities and Exchange Commission (SEC) [official website] put no effort into learning what Citigroup did wrong, Judge Jed Rakoff wrote, adding that the SEC was wrong to ask the court to ignore interests of the public:
It is not fair, because, despite Citigroup's nominal consent, the potential for abuse in imposing penalties on the basis of facts that are neither proven nor acknowledged patent. It is not adequate, because, in the absence of any facts, the Court lacks a framework for determining adequacy. And, most obviously, the proposed Consent Judgment does not serve the public interest, because it asks the Court to employ its power and assert its authority when it does not know the facts. An application of judicial power that does not rest on facts is worse than mindless, it is inherently dangerous. The injunctive power of the judiciary is not a free roving remedy to be invoked at the whim of a regulatory agency, even with the consent of the regulated. If its deployment does not rest on facts—cold, hard, solid facts, established either by admissions or by trials—it serves no lawful or moral purpose and is simply an engine of opposition.
A trial date is set for July 16, 2012.

In October, the judge ordered [text, PDF] the SEC and Citigroup 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. 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 [settlement agreement, PDF] on Goldman Sachs in a July 2010 suit.




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Lebanon tribunal leader defends institution
Drew Singer on November 29, 2011 11:41 AM ET

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[JURIST] President of the UN Special Tribunal for Lebanon (STL) [official website; JURIST news archive] Judge David Baragwanath [official website] on Monday issued a statement [text] defending his program following a visit to Lebanon. Tribunal Vice President Judge Ralph Riachi [official website] accompanied Baragwanath on the visit, where they saw a spirit of compliance that made them optimistic about their chances for success:
I was particularly heartened by the determination of the representatives of the Lebanese people to work for the rule of law and long-term stability. ... I am convinced that the strength of the legal and academic communities of Lebanon will allow the administration of justice in the country to attain new heights. The support we are receiving will allow the STL to contribute to securing the stability that everybody, the killers aside, so earnestly desires, which will open new opportunities for Lebanon.
The Tribunal is composed of professional judges selected internationally and includes senior members of the Lebanese judiciary. Baragwanath promised to conclude their job "as swiftly as fairness allows."

The STL has faced great difficulty [JURIST report] trying to arrest the members of Hezbollah in Lebanon where the Shiite militia Hezbollah, backed by Iran, is the country's most powerful political force. Hezbollah has denied involvement in the suicide bombing on February 14, 2005, which killed former Lebanese prime minister Rafik Hariri [BBC profile; JURIST news archive] in addition to 22 other people. If the trial commences, this would be the first trial in absentia at an international court since the prosecution of Nazis during the Nuremberg trials. In 2007, the UN Security Council approved a resolution to establish an ad hoc international tribunal to investigate and try suspects in the assassination of Hariri.




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Vietnam appeals court reduces sentence of pro-democracy blogger
Jennie Ryan on November 29, 2011 11:14 AM ET

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[JURIST] An appeals court in Vietnam reduced the sentence of pro-democracy blogger and professor Pham Minh Hoang [blog, in Vietnamese], alias Phan Kien Quoc, by more than half on Tuesday. Hoang was sentenced [JURIST report] in August to three years in prison after writing anti-government articles on his blog under his pen name. The appeals court reduced Hoang's sentence from three years to 17 months, but the court upheld his sentence of three years house arrest which he is to serve following the prison term. Hoang was charged with trying to overthrow the government after he reportedly joined the pro-democracy group Viet Tan [political website, in Vietnamese], which is banned in Vietnam as a terrorist organization, and began writing anti-government blog posts. According to Hoang's lawyer, the court cited Hoang's cooperation with police and his commitment to renounce Viet Tan as reasons for reducing his sentence [AP report].

In early August, a Vietnamese appeals court upheld the seven-year sentence of prominent rights lawyer and dissident Cu Huy Ha Vu, convicted in April [JURIST report] of carrying out anti-state propaganda. The court dismissed the appeal [AP report] despite Vu's arguments that his advocating for a multi-party system did not mean he was against the Communist party. In January 2010, a Vietnamese court sentenced [JURIST report] writer and democracy activist Pham Thanh Nghien to four years in prison on charges of spreading anti-state propaganda. That same month, a Vietnamese court convicted four democracy activists [JURIST report] of subversion. Following the one-day trial, human rights lawyer Le Cong Dinh [JURIST news archive] was sentenced to five years in prison. The four defendants were accused of activities aimed at ending communist rule in Vietnam. Dinh admitted to advocating multi-party democracy in Vietnam and joining the banned Democracy Party. Prior to Dinh's conviction, a Vietnamese court sentenced [JURIST report] pro-democracy dissident Tran Anh Kim in December 2009 to five-and-a-half years in prison for subversion.




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Libya revolutionaries continue to detain suspected Gaddafi mercenaries: UN report
Rebecca DiLeonardo on November 29, 2011 10:58 AM ET

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[JURIST] An estimated 7,000 detainees are still being held without due process by Libyan revolutionaries, according to a UN report [materials] made public Monday. The report to the UN Security Council, by UN Secretary-General Ban Ki-moon [official profile], says that most of the prisoners are being held in facilities maintained by independent brigades not under the control of the government, and that there have been allegations of abuse of prisoners. The report says that many of the prisoners are sub-Saharan Africans suspected of being mercenaries for former Libyan leader Muammar Gaddafi [BBC obituary; JURIST news archive]. Among the alleged abuses of prisoners there have been allegations of torture, targeting individuals based on race, detaining women in facilities with all-male guards, and detaining children in facilities alongside adults. Ban urged immediate action to end the abuse of prisoners:
While the National Transitional Council has taken some steps towards transferring responsibility for detainees from brigades to proper State authorities, much remains to be done to regularize detention, prevent abuse, bring about the release of persons whose detention should not be prolonged and ensure that future arrests are carried out only within the law. ... I believe that the leaders of the new Libya are truly committed to building a society based on respect for human rights. However difficult the circumstances, it is essential to take the earliest possible action to end arbitrary detention and prevent abuses and discrimination against third country nationals and against any group of Libya's own citizens.
Ban said it is crucial for the UN to continue to work closely with the National Transitional Council (NTC) [official website] in Libya to monitor the governmental transition and recommended a three-month extension of the UN Support Mission in Libya [official website]. Libya's leaders acknowledged Tuesday that some abuses may have occurred [AP report] but said the problem was not widespread and would be dealt with appropriately.

Last week, International Criminal Court (ICC) [official website] Chief Prosecutor Luis Moreno-Ocampo [official profile] said the ICC would allow Libya to conduct the trial of Saif al-Islam Gaddafi [JURIST report], son of Muammar Gaddafi. Ocampo said he trusts the new Libyan government will be able to try him fairly [AP report] despite concern expressed by human rights groups. Ocampo had traveled to Libya [JURIST report] to discuss the details of the Saif al-Islam trial with Libyan officials. Earlier this month, Saif al-Islam was captured in southern Libya, and Libyan Prime Minister Abdurrahim al-Keib subsequently pledged that he would receive a fair trial [JURIST reports]. Also this month, Ottilia Maunganidze [profile], a researcher at the Institute for Security Studies [website], wrote that the NTC must meet its international obligations [JURIST op-ed] and ensure justice for human rights violations by surrendering Saif al-Islam to the ICC. Edsel Tupaz of Tupaz & Associates and Daniel Wagner [profiles] of Country Risk Solutions wrote this month that while Libya needs a "strategically targeted court system" with a specialized war crimes court [JURIST op-ed] at its core, currently there is no avoiding "the fact that there are no domestic judicial mechanisms [in Libya] ... to enforce the voice of the ICC."




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Malaysia lawmakers advance ban on street protests
Jennie Ryan on November 29, 2011 10:17 AM ET

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[JURIST] Malaysia's lower house of Parliament [official website] approved a new law on Tuesday that would ban street protests and impose tougher restrictions on demonstrators in the nation. The Peaceful Assembly Bill [text, PDF] contains an outright ban on street protests while simultaneously restricting the population that may exercise the right to peaceful protest. Under the Act, non-citizens and individuals under 21 years of age are excluded from the "right to organize an assembly or participate in an assembly peaceably and without arms." Those who violate the law may be penalized with thousands of dollars in fines. The ruling party of Prime Minister Najib Razak [official profile] has said the Act is necessary to balance public safety with the right to peaceful assembly. Many have been sharply critical of the law, including opposition leader Anwar Ibrahim [official website; JURIST news archive], who says the law is being improperly rushed through Parliament. Approximately 500 lawyers protested the law by marching on Parliament [AP report] before the vote in the upper house. Rights groups say they are considering challenging the law in court.

Several other laws have been challenged recently in Malaysian courts. Late last month, the Malaysian Court of Appeal [official website] ruled that a law prohibiting college students from taking part in political activities is unconstitutional [JURIST report]. 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] prohibiting students from political participation. Also last 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 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.




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Bahrain court postpones ruling on capital case appeal, resumes retrial of medics
Alexandra Malatesta on November 29, 2011 9:58 AM ET

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[JURIST] A Bahrain [JURIST news archive] civilian court on Monday postponed its ruling on the appeals of two protesters sentenced to death [JURIST report] for the murder of police officers during anti-government protests. Also Monday, a Bahrain military tribunal resumed the retrial of 20 medical staff members [JURIST report] convicted in September 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. The prosecutor said that the medics' cases will start from scratch and the individuals should not be punished merely for their political views. The retrials [AFP report], meant to appeal sentences ranging from five to 10 years imprisonment, will be conducted before the highest civilian court in Bahrain, and the 20 will remain out of government custody, pending the outcome of their trials. The ruling on the protesters' death sentences has been rescheduled [AP report] for January 9.

Shortly after the convictions were handed down, the medics urged the UN to investigate claims of abuse [JURIST report] and due process violations. Earlier this week, Bahraini King Hamad bin Isa Al Khalifa [official profile] ordered a special commission [JURIST report] to look into recommendations made following an independent investigation into the alleged crackdown on pro-democracy protesters in the country. The announcement follows a report [JURIST report] released last week by the Bahrain Independent Commission of Inquiry (BICI) [official website] that Bahrain authorities used excessive force and tortured detainees involved in the pro-democracy demonstrations earlier this year.




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Kenya court issues arrest warrant for Sudan president al-Bashir
Alexandra Malatesta on November 29, 2011 9:29 AM ET

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[JURIST] The Kenyan High Court ruled Monday that Sudanese President Omar al-Bashir [ICC materials; JURIST news archive] must be arrested if he ever returns to Kenya. The ruling was in response to al-Bashir's second visit [JURIST report], where Kenya joined the ranks of the other African countries that have refused to enforce [All Africa report] the International Criminal Court (ICC) [official website] arrest warrant. The judge explained that as a signatory of the ICC Rome Statute Kenya is obliged to enforce the warrant [BBC report] if given the opportunity. 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 [JURIST report] for non-cooperation. In reaction to the court's ruling, the Sudanese Foreign Ministry [official website] ordered that the Kenyan ambassador to Sudan be expelled from the country [All Africa report]. The ambassador has 72 hours to leave Sudan [AP report].

Al-Bashir remains an extremely controversial figure in international politics for his actions during the Darfur conflict. The ICC requested last month that the Republic of Malawi explain [JURIST report] why that country's authorities failed to arrest al-Bashir during his widely reported visit there for a trade summit. 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].




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Supreme Court hears arguments on real estate lawsuits, jurisdiction
Jaclyn Belczyk on November 28, 2011 3:29 PM ET

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[JURIST] The US Supreme Court heard oral arguments [day call, PDF] Monday in two cases. In First American Financial Corp v. Edwards [transcript, PDF; JURIST report], the court heard arguments on whether a plaintiff has standing to sue, on behalf of a nationwide class, claiming a real estate company violated the Real Estate Settlement Procedures Act of 1974 [text] without claiming that the violation affected the services rendered. RESPA makes it illegal for settlement service companies to receive a kickback involving any federally related mortgage loan. The plaintiff argues that her title agent improperly referred her to First American Financial [corporate website] in violation of RESPA seeking to recover settlement service charges despite not showing that First American Financial was more expensive or provided inadequate service. The US Court of Appeals for the Ninth Circuit held [opinion, PDF] that the payment of the service charges established an injury in fact sufficient to satisfy Article III standing because RESPA's text does not limit liability to cases where the plaintiff is overcharged. Counsel for the petitioner, First American, argued:
Article III requires a private plaintiff to show injury in fact, which means at a minimum that the alleged illegal conduct made her worse off. Factual injury does not automatically follow from violation of a statutory duty owed to the plaintiff, and Ms. Edwards has not alleged the type of harm alleged by plaintiffs in the common law cases that she invokes—no misappropriation of her property, no loss of desired opportunity or benefit, no injury to reputation.
Counsel for the respondent argued:
For at least 280 years the law has been clear that when someone breaches a duty of loyalty owed to you by taking a kickback or otherwise introducing a conflict into a transaction, you can sue on the basis of that alone, without showing a further harm in terms of economic loss.
Counsel for the US government argued as amicus curiae on behalf of the respondent.

In Mims v. Arrow Financial Services, LLC [transcript, PDF; JURIST report], the court heard arguments on whether Congress divested the federal district courts of their federal question jurisdiction [28 USC § 1331 text] over private actions brought under the Telephone Consumer Protection Act [FCC summary, PDF]. The US Court of Appeals for the Eleventh Circuit held [opinion, PDF] that federal courts lack jurisdiction over private actions under the act. Counsel for the petitioner argued:

The Federal question jurisdiction statute ... broadly grants Federal courts jurisdiction over all actions arising under Federal law unless Congress has provided otherwise. That grant of jurisdiction encompasses rights of action that are created and governed by substantive Federal law. The Telephone Consumer Protection Act sets for forth such a right of action. It provides detailed substantive standards and it grants a private right of action to recover for their violation. The TCPA permits that action to be filed in a State court if the State court allows such action, but it says nothing one way or another about whether the action may also be filed in Federal court.
Counsel for the respondent argued that "this Court ... should hold that Congress did not intend for private TCPA claims to be brought in Federal court."




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UN report: Syria committing human rights violations
Sung Un Kim on November 28, 2011 2:17 PM ET

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[JURIST] The Independent International Commission of Inquiry on Syria reported [text, PDF] Monday that the Syrian Arab Republic has committed numerous human rights violations [press release] including torture, sexual violence, use of excessive force and violations of the right to peaceful assembly. The investigation on which the report is based on was initiated [JURIST report] by the UN Human Rights Council (UNHRC) [official website] after allegations [JURIST report] of international human rights violations during a crackdown on anti-government protesters since March of this year. The report stressed that due to Syria being a party to most major international treaties such as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights of the Child and the Convention on the Prevention and Punishment of the Crime of Genocide, the state is obligated to respect and promote human rights of all persons. Consequently, the report concluded that the Syrian government and its officials have failed to comply with these responsibilities:
The prohibition of crimes against humanity is a jus cogens or peremptory rule, and the punishment of such crimes is obligatory pursuant to the general principles of international law. Furthermore, crimes against humanity are the culmination of violations of fundamental human rights, such as the right to life and the prohibition of torture or other forms of inhuman and degrading treatment. According to the principles of State responsibility in international law, the Syrian Arab Republic bears responsibility for these crimes and violations, as well as the duty to ensure that individual perpetrators are punished and that victims receive reparation.
The commission urged the Syrian Arab Republic government to take measures in order to end the continuance of human rights violations and to allow immediate and full access to UN human rights monitoring bodies.

The Syrian government has faced numerous allegations of human rights violations since March when the first anti-government protests started. Last week, the UN General Assembly's Human Rights Committee approved [JURIST report] a draft resolution [text, PDF] condemning the Syria's human rights violations calling for an immediate end to them. The death toll of Syrian protesters steadily increased since the beginning of the first outbreak of anti-government protests and earlier this month, the number exceeded 3,500 [JURIST report], an increase of 900 from September's number [JURIST report]. The allegations of human rights violations continued to increase as well and last month, Syria was urged [JURIST report] to allow UN human rights experts to conduct investigations into these allegations. In August, the UN High Commissioner for Human Rights Navi Pillay [official profile] recommended [JURIST report] the UN Security Council [official website] to refer Syria to the International Criminal Court (ICC) [official website] for the violence against anti-government protests after her demand [JURIST report] to the Syrian government to stop the killings of protesters in March.




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Report alleges corruption, torture in Russia lawyer prison death
Jerry Votava on November 28, 2011 12:44 PM ET

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[JURIST] A private investigative report issued on Monday detailed the denial of medical treatment [report text, PDF] to and severe physical abuse of former Russian lawyer and purported whistle-blower Sergei Magnitsky [JURIST news archive], who died [JURIST report] in a Moscow prison in November 2009. In addition to details of Magnitsky's treatment and death, the report alleges corruption by Russian officials in the cover up of the details surrounding Magnitsky's death, and surrounding the apparent theft of $230 million from the Russian Treasury. The report concluded "the Russian government knows exactly who tortured and killed Sergei Magnitsky, as well as who stole $230 million, but has refused to investigate and prosecute them." Magnitsky was arrested on allegations of tax fraud after implicating Russian police in a multimillion-dollar embezzlement scandal while working as outside counsel for the London-based investment fund Hermitage Capital Management [corporate website]. Russian investigators reopened the case [JURIST report] against Magnitsky in August on the basis of a new ruling permitting criminal cases against the dead.

Russian President Dmitry Medvedev [official profile; JURIST news archive] announced in July that Magnitsky's pre-trial death was the result of criminal acts [JURIST report] and not attributable to the denial of medical treatment from prison doctors. Prior to his death, Magnitsky was held in prison for 358 days with little to no access to legal representation, his family or medical professionals. Last year, US lawmakers introduced a bill [JURIST report] that would prohibit the US State Department [official website] from issuing visas to individuals, or their family members, who are connected to Magnitsky's death. In 2009, shortly following Magnitsky's death, a Russian human rights group alleged [JURIST report] that Magnitsky had been murdered while in prison.




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Myanmar soldiers may be committing war crimes: rights group
Jamie Davis on November 28, 2011 11:07 AM ET

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[JURIST] Human rights group Partners Relief and Development [advocacy website] said Monday that Myanmar soldiers may be committing war crimes [press release] in the form of torture and forced labor against ethnic communities in Kachin State. The group issued a report [text, PDF, graphic content] documenting the war crimes which allegedly began on June 9 after a 17-year ceasefire agreement was broken to begin a war between the Myanmar army and the Kachin Independence Army [BBC backgrounder]. Evidence for the alleged war crimes was gathered from first-hand interviews of witnesses in Myanmar. The report calls attention to Myanmar's legal obligations and highlights that it has failed to honor its obligations under human rights law and the Geneva Convention [ICRC backgrounder] and that it may also be subject to charges from the International Criminal Court (ICC) [official website]. The report calls on the UN to conduct an investigation into the war crimes in Myanmar:
Considering the evidence available, the actions and involvement of the Burma Army in causing extensive and prolonged displacement of civilian populations throughout Burma are likely to amount to crimes against humanity and/or war crimes. In order to establish the facts, investigate allegations of these grave breaches of international law and hold the perpetrators responsible for their role in such crimes, the international community should support a UN mandated Commission of Inquiry into international crimes in Burma. This does not have to come at the expense of parallel engagement with the Burmese authorities—on the contrary, the Burmese authorities would be expected to welcome such independent inquiries.
The report urges Myanmar to cease the harming of civilians during the war, permit and conduct investigations and allow UN access to conduct an independent investigation. The group also urged US Secretary of State Hillary Clinton to raise issues of war crimes when she visits the country as the first Secretary of State to visit Myanmar in 50 years.

Myanmar's human rights record has been at the center of discussion recently. UN Secretary-General Ban Ki-moon [official profile] announced [JURIST report] this month, after meeting with Myanmar President Thien Sein [BBC backgrounder], that he hopes to visit Myanmar soon and praised the nation for ongoing reforms. Last month, 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 pro-democracy leader Aung San Suu Kyi [BBC profile; JURIST news archive]. 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. Myanmar's government formed the Myanmar National Human Rights Commission (MNHRC) in September to promote and safeguard the country's constitutional rights [JURIST report]. 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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Supreme Court to rule on criminal fines, sentencing
Jaclyn Belczyk on November 28, 2011 10:50 AM ET

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[JURIST] The US Supreme Court [official website] granted certiorari [order list, PDF] Monday in five cases. In Southern Union Co v. United States [docket], the court will determine whether the Fifth and Sixth Amendment [text] principles that the Supreme Court established in Apprendi v. New Jersey [opinion] and its progeny apply to the imposition of criminal fines. Apprendi requires that "any fact" other than that of a prior conviction "that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." The US Court of Appeals for the First Circuit held [opinion] that the Apprendi rule does not apply to the imposition of statutorily prescribed fines.

In Vasquez v. United States [docket], the court will determine whether the US Court of Appeals for the Seventh Circuit violated the Supreme Court's precedent on harmless error when it focused its harmless error analysis [opinion, PDF] solely on the weight of the untainted evidence without considering the potential effect of the error (the erroneous admission of trial counsel's statements that his client would lose the case and should plead guilty for their truth) on the jury at all. The court will also determine whether the Seventh Circuit violated Vasquez's Sixth Amendment right to a jury trial by determining that he should have been convicted without considering the effects of the district court's error on the jury that heard the case.

In Christopher v. Smithkline Beecham Corp [docket; cert. petition, PDF], the court will determine (1) whether deference is owed to the Secretary of Labor's interpretation of the Fair Labor Standards Act (FLSA) [text, PDF] outside sales exemption and related regulations; and (2) whether the Fair Labor Standards Act's outside sales exemption applies to pharmaceutical sales representatives. The US Court of Appeals for the Ninth Circuit ruled [opinion, PDF] that pharmaceutical sales representatives are exempt from the FLSA overtime-pay requirement.

In the consolidated cases of Dorsey v. United States [docket] and Hill v. United States [docket; cert. petition, PDF], the court will consider whether the district court erred in not sentencing the defendant-petitioner pursuant to the Fair Sentencing Act of 2010 [materials] where petitioner was sentenced on December 2, 2010, after the effective date of the FSA and the amendments to the sentencing guidelines mandated by the FSA. The Seventh Circuit ruled [order, PDF] in Hill that "the relevant date for determining whether the Act applies is the date of the offense conduct, rather than the date of sentencing."




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Bahrain king orders commission to study report on rights violations
Jennie Ryan on November 28, 2011 9:51 AM ET

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[JURIST] Bahraini King Hamad bin Isa Al Khalifa [official website] has ordered a special commission [BNA report] to look into recommendations made following an independent investigation into the alleged crackdown on pro-democracy protesters in the country, the official state media reported Saturday. The announcement follows a report [JURIST report] released last week by the Bahrain Independent Commission of Inquiry (BICI) [official website] that Bahrain authorities used excessive force and tortured detainees involved in the pro-democracy demonstrations earlier this year. The BICI found that the Bahraini government was unprepared to respond to the situation that arose when demonstrations began in the country. Among the numerous recommendations included in the report, the BICI suggested that the nation
establish a national independent and impartial mechanism to determine the accountability of those in government who have committed unlawful or negligent acts resulting in the deaths, torture and mistreatment of civilians with a view to bringing legal and disciplinary action against such individuals, including those in the chain of command, military and civilian, who are found to be responsible under international standards of—superior responsibility.
The special commission is set to evaluate the BICI report and make its own recommendations [AP report] by February of next year.

Last week, the Bahrain government admitted the use of excessive force [JURIST report] in the protests. This admission, which was made in anticipation of the independent BICI report, was a reversal of the government's previous defense of its actions [CNN report]. In June, Khalifa announced that an independent commission would investigate human rights violations [JURIST report] related to the country's pro-democracy protests. Earlier that month, UN Office of the High Commissioner for Human Rights (OHCHR) [official websites] announced that Bahrain agreed to permit a UN commission [JURIST report] to investigate human rights violations related to protests. In April, human rights organizations including Human Rights Watch (HRW) and Doctors Without Borders (DWB) [advocacy websites] criticized Bahrain for rampant human rights abuses [JURIST report] related to anti-government protests.




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UAE court sentences 5 policital activists
Maureen Cosgrove on November 27, 2011 3:04 PM ET

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[JURIST] The United Arab Emirates (UAE) Federal Supreme Court in Abu Dhabi on Sunday sentenced five pro-democracy activists to prison for participating in a campaign seeking political liberties. One activist was sentenced to three years in prison while the others were sentenced to two years in prison by the three-judge panel. The activists will not be able to appeal the convictions [AP report] and prison sentences because the cases were heard in the country's highest court. The five were charged in June under § 176 of the UAE Penal Code [text] for publicly insulting UAE president Sheikh Khalifa Bin Zayed and other government officials. Two of the five men are alleged to have used or incited violence on UAE Hewar [website, in Arabic], an online political forum. Blogger Ahmed Mansoor, one of the five, was also charged with inciting others to break the law, demonstrating and calling for an election boycott. The men have been detained since they were arrested in April after signing an online petition demanding political reforms. Upon learning of the convictions, Amnesty International (AI) [advocacy website] called on the UAE government to release the "prisoners of conscience" immediately [press release], saying the trials failed to meet the minimum standards under international law.

Rights groups have criticized the UAE recently for its conduct in the wake of calls for political reform. A trial observer appointed by a coalition of human rights groups said earlier this month that the trial of the five activists charged has been "grossly unfair" [JURIST report] and "has no basis in international law as it violates their freedom of expression." Rights groups called for the trial to end [JURIST report] in July, but the UAE nonetheless proceeded with the charges. Human Rights Watch (HRW) [advocacy website] urged [press release; JURIST report] the government of the UAE in April to reverse its decision to dissolve the board of directors of the Jurist Association, a prominent civil rights group. HRW was critical of the UAE government [press release] when it arrested Mansoor in April for calling for democratic reform. HRW also urged international public institutions [HRW press release] that have a presence in the country, such as the Guggenheim, New York University (NYU), and the Agence France Museum [official websites], to publicly condemn the UAE government's detention of rights activists. HRW has continued to monitor the UAE's compliance with international human rights standards following a 2010 report [HRW report] suggesting the human rights climate in the UAE has worsened. HRW has been particularly concerned about torture, the deterioration of conditions for migrant workers, restrictions on freedoms of expression and association, and violations of women's rights. In October 2010, HRW condemned [press release; JURIST report] a ruling by the UAE Federal Supreme Court affirming a "husband['s] right to discipline his wife" as a violation of UAE treaty obligations.




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Mexico activists seek ICC probe of Calderon, drug war
Maureen Cosgrove on November 27, 2011 2:29 PM ET

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[JURIST] Mexican activists on Friday filed a complaint in the International Criminal Court [official website] asking the court to investigate alleged human rights violations by the army and police resulting from the attack on drug cartels initiated by Mexican President Felipe Calderon [official website, Spanish]. The activists claim that, in addition to the nearly 470 cases of human rights abuses perpetrated by the government, Mexican drug lords have also committed crimes against humanity [AP report] since 2006, including an estimated 40,000 deaths. Joaquin "El Chapo" Guzman, a cartel leader, is also named as a defendant in the complaint. The Mexican Department of the Interior released a statement in response to the complaint, denying involvement in human rights violations [press release, in Spanish]:
The Federal Government strongly rejects that security policy may constitute an international crime. The actions of the National Security Strategy are deployed with full respect for the rule of law, to stop the activity of criminal organizations, to bring their members to justice and prevent the violence and insecurity they generate. If it had not been for the strength shown from the start of the administration, many families in various communities across the country would be at the mercy of criminals.
The government also stated that filing a complaint with the ICC was the "wrong way" to "fight crime and impunity," and that the activists should first proceed with their complaint through the national criminal justice system.

This is not the first time the security forces have been accused of committing rights abuses. Earlier this month, Human Rights Watch (HRW) [advocacy website] released a report [text, PDF] indicating that Mexican security forces have committed widespread rights abuses [JURIST report], such as torture and forced disappearances, in combating organized crime. In August, Mexico's National Human Rights Commission [official website, in Spanish] issued a report [text, PDF, in Spanish] contending that military and law enforcement officials routinely conducted illegal searches [JURIST report]. Mexico has struggled to combat the drug cartels' influence on the government and the country as a whole. There have been more than 27,000 drug-related deaths [STRATFOR report] since 2006. In 2008, a former assistant attorney general was arrested for receiving bribes and Mexico's prosecutor's office admitted that it had been infiltrated [JURIST reports] by the drug cartels.




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US commission to examine effects of immigration laws on civil rights
Ashley Hileman on November 27, 2011 11:39 AM ET

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[JURIST] The US Commission on Civil Rights [official website] announced on Tuesday that it will examine the impact that state-enacted immigration enforcement laws have on individual civil rights. The announcement stems from a unanimous vote [press release] taken at the Commission's most recent business meeting. Following the vote, Martin Castro, Commission Chairman, stated, "I believe that the enactment of these state immigration enforcement laws presents a pressing national civil rights issue that affects immigrants and US citizens alike. I'm proud that my fellow Commissioners joined me in voting unanimously and in bipartisan manner to have the Commission look into this important issue." The Commission will start by focusing its efforts on the laws in Alabama, Georgia and South Carolina in an attempt to determine whether these laws have resulted in increasing hate crimes or instances of racial profiling, among other civil rights violations.

Each of the state-enacted immigration laws has faced various legal challenges. Earlier this month, the US Department of Justice (DOJ) [official website] filed a brief [JURIST report] in the US Court of Appeals for the Eleventh Circuit [official website] urging the court to strike down Alabama's immigration law [HB 56 text]. The DOJ filed its brief in response to a federal judge's September 28 ruling [opinion text] that allowed the state to enforce a provision that makes it a felony for an illegal alien to conduct business with the state, among other provisions. Also this month, the DOJ urged [JURIST report] the US Supreme Court [official website] not to hear Arizona's appeal of a decision [opinion, PDF] enjoining four provisions of the state's controversial immigration law [SB 1070 materials; JURIST news archive]. The US Court of Appeals for the Ninth Circuit [official website] upheld an injunction in April before the law ever took effect, and Arizona is now asking the high court [JURIST reports] to address whether the state law is preempted by federal immigration legislation. While the state maintains that the Ninth Circuit incorrectly concluded that the state law was facially preempted and "declined to determine whether there were constitutional applications" of the Arizona immigration legislation, the DOJ insists the court properly blocked [AP report] the provisions.




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UN rights panel asks Syria for report on child torture allegations
Ashley Hileman on November 27, 2011 10:25 AM ET

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[JURIST] The UN Committee Against Torture [official website] expressed concern Friday over allegations of human rights violations in Syria, including the torture of children, and requested a report addressing these matters. Claudio Grossman, who currently heads the committee, said [press release]: "Of particular concern are reports referring to children who have suffered torture and mutilation while detained; as well as cases of extrajudicial, summary or arbitrary executions; arbitrary detention by police forces and the military; and enforced and involuntary disappearances." The committee is composed of 10 members and is tasked with ensuring that countries comply with the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment [text], which Syria ratified in 1988. The requested report, which is due to the committee by March 9, requires Syria to outline the ways in which it is in compliance with the obligations of the Convention as well as provide information on the events that are currently taking place in the country.

Earlier this month, the Office of the High Commissioner for Human Rights (OHCHR) [official website] announced that the death toll of Syrian protesters had exceeded 3,500 [JURIST report] despite the recent signing of a peace plan sponsored by the League of Arab States [official website, in Arabic]. In the week prior to the announcement, approximately 60 people were killed by military and security personnel, included 19 people who were killed during the Muslim holiday of Eid al-Adha. Spokesperson for the OHCHR, Ravina Samdasani, said, "we are deeply concerned about the situation and by the Government's failure to take heed of international and regional calls for an end to the bloodshed." Additionally, while the Syrian government announced that 553 prisoners would be released, tens of thousands of prisoners remain in detention as dozens of protesters continue to be arrested each day. This announcement followed what have been some of the deadliest clashes of a movement that began in Syria last March [JURIST report].




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UN rights expert criticizes North Korea treatment of prisoners
Julia Zebley on November 26, 2011 2:38 PM ET

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[JURIST] The UN Special Rapporteur on North Korean Human Rights Marzuki Darusman criticized North Korea's human rights record on Friday, especially concerning treatment of prisoners, echoing a UN General Assembly [official website] resolution [text] earlier this week. After speaking to North Korean refugees in South Korea, Darusman said he was convinced that 200,000 political prisoners are being abused [AFP report] in forced labor camps. North Korea has refused to admit agents of the UN to gather information and denies that labor camps exist. Monday's resolution, which urged North Korea "to immediately end all violations of human rights and give voice to the victims of these violations," was lambasted by the North Korean government, which called it an attempt by the US to tarnish [AFP report] North Korea's reputation with the international community. During the drafting of the resolution, the representative for North Korea also resisted censure, stating the North Korean government was being held to a double standard and they would not respond to confrontation and "political pressure." Darusman, despite his criticisms of the nation, called for other countries, especially South Korea, to continue offering aid [VOA report] due to a worsening famine.

In December, the International Criminal Court (ICC) [official website] confirmed that the prosecutor's office has opened preliminary examinations to evaluate possible war crimes committed by North Korea [JURIST report]. ICC chief prosecutor Luis Moreno-Ocampo [official profile] verified that evaluations will determine if some of the incidents by North Korean forces in South Korea constitute war crimes, giving the ICC jurisdiction over the matter. Earlier in 2010, a UN committee condemned [JURIST report] what it called persistent, "grave violations of civil, political, economic, social and cultural rights" of its own people. In March 2010, the UN Human Rights Council (UNHRC) [official website] adopted a resolution condemning [JURIST report] North Korea for human rights abuses. Earlier in March, the UN Special Rapporteur for North Korea, Vitit Muntarbhorn reported to the UNHRC that North Korean human rights situation was continuing to deteriorate [JURIST report]. This report came after Muntarbhorn's previous criticism, in October, 2009, of North Korea's "abysmal" [JURIST report] and ongoing human rights violations, alleging that the authoritarian government was responsible for various abuses, including torture, public executions, extensive surveillance, media censorship, women's rights violations and widespread hunger.




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Berlusconi loses bid to block testimony at corruption trial
Dan Taglioli on November 26, 2011 1:58 PM ET

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[JURIST] An Italian high court Thursday rejected an application by former prime minister Silvio Berlusconi [BBC profile; JURIST news archive] to prevent testimony being heard at his corruption trial. Berlusconi had applied for but was denied an interim injunction [Guardian report] preventing David Mills [JURIST news archive], his former tax lawyer, from appearing via video link from a London court. A justice sitting in private in London turned down the application after giving weight to Italian prosecutors' arguments that Berlusconi was merely trying to delay proceedings. Mills, 64, had set up a web of offshore companies and trusts for Berlusconi, and was indicted with the former prime minister on corruption charges by the Milan district court. He is the estranged husband of former Labour cabinet minister Tessa Jowell, who split with Mills in 2006 after it emerged that, unknown to her, he had paid off part of their mortgage with £350,000 allegedly given as a gift by Berlusconi. Mills was convicted in absentia [JURIST report] in February 2009. He is now due to testify at Westminster magistrates court on Monday.

Berlusconi has been a defendant in nearly 50 cases, including two other ongoing proceedings involving tax fraud and embezzlement [JURIST reports]. In July an Italian appeals court ordered Fininvest [corporate website], a holding company owned by Berlusconi, to pay €560 million in damages and fees to Compagnie Industriali Riunite (CIR) Group [corporate website]. The complaint stemmed from Fininvest's 1991 acquisition of Italian publishing company Mondadori [corporate website], during which Fininvest bribed a judge in exchange for favorable decisions. Neither Berlusconi nor Ruby attended [JURIST report] the beginning of the prostitution trial in April, and the court adjourned after only 10 minutes. Both parties deny having a sexual relationship, and Berlusconi has denied any wrongdoing, calling the accusations groundless.




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Tunisia court convicts nephew of ex-president
Dan Taglioli on November 26, 2011 1:18 PM ET

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[JURIST] A Tunisian criminal court Friday convicted a nephew of the wife of Tunisia's ousted former president Zine Al Abidine Ben Ali [BBC profile; JURIST news archive], immediately pronouncing an 18-year prison sentence for writing over USD $399 million in bad checks. Imed Trabelsi, viewed as the favorite nephew of former first lady Leila Trabelsi, is already in jail for other crimes including drug possession, money laundering and embezzlement [AP report], and has been on a hunger strike since November 8 to protest what he says are unfair trials. According to the Tunisian News Agency, Trabelsi's lawyer requested the hearing be postponed [TAP report], but the court deemed it unnecessary and decided to pronounce the verdict. Trabelsi has already appealed his drug convictions and lost [JURIST report], and may still face additional charges. The former businessman was arrested after Ben Ali fled the country to Saudi Arabia in January when the regime toppled under nationwide protests.

Tunisia has been cracking down on the family of Ben Ali since the ousted president fled the country amidst the protests, ending the 23-year autocratic rule in which his family amassed substantial wealth that many Tunisians say was accrued at their expense. In June a Tunisian court sentenced [JURIST report] in absentia Sofiane Ben Ali, another nephew of Ben Ali, to 15 years in prison for issuing bad checks totaling more than USD $430,000. That same week, Ben Ali and his wife were convicted in absentia and sentenced to 35 years in prison on charges of theft and unlawful possession of money and jewelry just hours after the trial began that morning [JURIST reports]. The two were also charged with illegal possession of drugs and weapons. Ben Ali said he was "duped" into leaving [AFP report] the capital Tunis, according to a statement released through his lawyer. He said that he was trying to get his family out of the country after assassination threats and that the plane left him in Saudi Arabia despite orders to wait for him. Ben Ali has denied the charges against him [JURIST report], most of which stem from allegations he authorized the use of force against protesters during the protests, resulting in more than 200 deaths.




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Belarus court jails human rights activist for tax evasion
Julia Zebley on November 26, 2011 1:00 PM ET

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[JURIST] A Belarus court convicted [press release] human rights activist Ales Bialiatski, the president of Viasana and vice-president of the International Federation for Human Rights (FIDH) [advocacy websites], of tax evasion on Thursday, sentencing him to a four-and-a-half-year prison term. Viasna is a non-governmental human rights organization in Belarus that is dedicated to reporting on allegations of police and prosecutorial misconduct as well as providing legal aid and support for political prisoners. The government alleged that Bialiatski had evaded taxation on donations to Viasana by using Polish and Lithuanian accounts to fund his human rights projects, although Viasana is not recognized as a nonprofit organization by the Belarus government, so donations within the country are banned. Prosecutors argued that Bialiatski used the donations as personal income [oral arguments summary] that was subject to taxation. In his final statement at trial, Bialiatski criticized the Belarusian government's persecution of Viasna and other human rights organizations:
Many of my friends have been dismissed from their jobs and subjected to administrative harassment. The authorities are persecuting their political opponents, restricting civil and political rights and preventing the development of civil society. The authorities do not stand any criticism, harassing journalists and human rights defenders. The key contradiction is in the fact that the authorities' actions are an outrage against the Belarusian Constitution and the country's international obligations. Why did you sign the Declaration? Leave the UN and the OSCE, and everyone will be able to see where we all are.
After the announcement of the verdict, protests began in Russia and Belarus [press releases], both resulting in arrests. The governments of Poland and Lithuania have apologized to Viasna for revealing Bialiatski's account information, and, since the verdict, Lithuania has announced they will have no further diplomatic contact with Belarus [Charter 97 report]. Poland also denounced the verdict [Warsaw Business Journal report], calling for Bialiatski 's immediate release. The sentence has also been condemned by the US embassy in Minsk [AP report], the Organization for Security and Co-operation in Europe (OSCE) [official website; press release], 47 Belarusian NGOs [press release], Human Rights Watch [advocacy website; press release], Amnesty International [advocacy website; press release] and the European Union [official website; press release, PDF].

Belarus has been under increasing criticism for what many see as a rapid decline of human rights in the Eastern European nation. In September, UN High Commissioner for Human Rights Navi Pillay [official profile] suggested a need for UN intervention in Belarus [JURIST report] and demanded the nation free non-violent political prisoners. Her report also cited Belarus as the only European nation to still enforce the death penalty. Ambassador Mikhail Khvostov said his country disagrees with the UN on what constitutes a peaceful demonstration and that Belarus is committed to human rights. The month before, members of the Belarus Parliament introduced a bill that would ban so-called "silent protests" [JURIST report], including those involving large groups of people basically doing nothing. Nonetheless, silent protests continue [RT report], largely in defiance of President Alexander Lukashenko [BBC profile; JURIST news archive]. Earlier this year, Belarus' Minsk City Court delivered suspended sentences for two former presidential candidates, Uladzimer Nyaklyaeu and Vital Rymasheuski, convicted of organizing protests following the re-election [JURIST reports] of Lukashenko. The two-year suspended sentences were handed down days after former presidential candidate Andrey Sannikau [Free Belarus Now profile] was sentenced to five years [JURIST report]. Hundreds of activists were arrested after protesting Lukashenko's 2006 presidential win, including opposition candidate Alexander Milinkevich [JURIST reports]. While Lukashenko has since sought to improve his country's ties with western nations, the US State Department has historically criticized Belarus' human rights record [JURIST report]. The UN General Assembly Third Committee and the International Helsinki Federation for Human Rights [JURIST reports] have similarly denounced Belarus for human rights abuses.




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ECJ rules ISPs not required to monitor user activity for filesharing
Jamie Davis on November 25, 2011 1:23 PM ET

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[JURIST] The European Court of Justice (ECJ) [official website] ruled [press release, PDF] on Thursday that Internet service providers (ISPs) cannot be required by law to monitor their customers' activities as an attempt to combat illegal sharing of copyrighted material. The court's ruling comes after a lower court ordered an Internet provider, Scarlet [official website], to make it impossible for its users to send or receive any file containing musical work. Scarlet appealed, citing that the lower court's decision violated both the E-Commerce directive [text, PDF] and fundamental rights. The court agreed with Scarlet's argument:
In the present case, the injunction requiring the installation of a filtering system involves monitoring, in the interests of copyright holders, all electronic communications made through the network of the internet service provider concerned. That monitoring, moreover, is not limited in time. Such an injunction would thus result in a serious infringement of Scarlet's freedom to conduct its business as it would require Scarlet to install a complicated, costly, permanent computer system at its own expense. What is more, the effects of the injunction would not be limited to Scarlet, as the filtering system would also be liable to infringe the fundamental rights of its customers, namely their right to protection of their personal data and their right to receive or impart information, which are rights safeguarded by the Charter of Fundamental Rights of the EU.
The ruling came as a setback to the Belgian management company SABAM [official website], but they responded in a press release [text, PDF] that "[i]f the Court has excluded general filtering, it has not ruled out any other measure. Consequently, SABAM shall take the time to thoroughly analyze some alternatives."

This is not the first time courts have been asked to rule on issues regarding the Internet, since its use has increased in recent years. The United Kingdom's High Court of Justice [official website] ruled [JURIST report] in July for the Motion Picture Association (MPAA) [corporate website], requiring Internet provider British Telecom (BT) [corporate website] to block access to a file-sharing website, Newzbin2 [official website]. The Tribunal de Grande Instance de Paris [official website, in French] in October ordered [JURIST report] 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. United States courts have also been asked to weigh in on legal issues concerning the Internet. The American Civil Liberties Union of Louisiana (ACLU) [advocacy website] in August filed a complaint [JURIST report] in federal court seeking to block a new Louisiana law that limits Internet use for registered sex offenders.




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Sri Lanka investigating civilian casualties from civil war
Sung Un Kim on November 25, 2011 11:17 AM ET

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[JURIST] Sri Lankan Secretary of Defence Gotabaya Rajapaksa [official profile] stated on Thursday in a speech [press release and transcript] that the government has begun counting the number of civilian deaths from its 26-year civil war with the Liberation Tigers of Tamil Eelam (LTTE) [JURIST news archive]. The counting was initiated to counter several allegations of war crimes against the Sri Lankan military including those in an April UN report [text, PDF; JURIST report]. According to a census conducted with the Department of Census and Statistics [official website] that will be released in the near future, the number of civilian casualties are much smaller than those predicted by independent organizations. Rajapaksa continued in criticizing those who made the allegations against the Sri Lankan military:
If the extremely well trained Sri Lankan military suffered 6,000 deaths and 25,000 serious injuries, it should be evident the number of LTTE casualties should be comparable or higher. However, this consideration gets almost no attention when allegations are made about the number of dead and missing during the conflict. It is almost as if those who make allegations about the deaths in battle are under the impression that the Sri Lankan military was fighting phantoms. The manifest absurdity of this underscores the lack of perspective of those who make these claims.
The Secretary of Defence further stressed the professionalism of the Sri Lankan military minimizing the occurrence of crimes and its rapid response in dealing with such criminal acts.

The Sri Lankan government has faced various allegations of human rights violations and war crimes by civil rights organizations and the UN since the end of its civil war in 2009. This month, a former Sri Lankan army chief was sentenced [JURIST report] to an additional three years in prison for his comment to a local newspaper that the government of President Mahinda Rajapaksa [BBC profile] ordered the killing of surrendering rebel leaders during the civil war and therefore, was in breach of Sri Lanka's emergency laws effective at that time. He was found guilty [JURIST report] in August due to his involvement in politics while active on duty. Sri Lankan government was also subject to criticism for its failure to investigate [JURIST report] issues of torture for past human rights violations and to enforce laws against continued torture and ill-treatment by government officials against civilians. In October, a group of human rights organizations and lawmakers urged [JURIST report] the Australian government to start its investigations in Canberra against a former Sri Lankan Navy admiral for alleged war crimes violations during the civil war. During the same month, the Sri Lankan government announced [JURIST report] that it will adopt a National Action Plan for the Protection and Promotion of Human Rights. In August, 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 military of having killed civilians during the civil war.




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Egypt military council apologizes for deaths of protesters
Michael Haggerson on November 24, 2011 3:14 PM ET

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[JURIST] Egypt's Supreme Council of the Armed Forces (SCAF) [NYT backgrounder] on Thursday called for an end to violence against protesters and reiterated that demonstrations were a protected right, as long as they were done peacefully. The SCAF also assured citizens that arrested demonstrators would be released [Al Jazeera report], possibly by Saturday. Protesters have been clashing with Egyptian security forces for 6 days [JURIST report] over concerns with actions taken by the military ruling council. The SCAF assured Egyptians that elections would begin on Monday as scheduled, despite the continuing protests.

The November 28 election is considered the first free election following the overthrow [JURIST report] of Mubarak in February. Earlier this week, the Egypt Supreme Administrative Court suspended a verdict [JURIST report] handed down last week by the Mansoura Administrative Court that prohibited former officials of the National Democratic Party (NDP) to participate in the upcoming election. As a result, most of the officials who joined other parties or plan to run independently are now allowed to continue their campaigns for the election. This month, Egypt stated that it will amend its constitution [JURIST report] based on a court ruling from a week before in order to allow citizens living abroad to vote in the parliamentary election. In addition, the SCAF announced that it will create a law that will ban [JURIST report] anyone found guilty of corruption from the election process. Mubarak himself is faced with charges of complicity in the deaths of more than 800 protesters [JURIST report] during the pro-democracy demonstrations in Egypt [JURIST news archive]. His trial was adjourned [JURIST report] last month and will not resume until December 28. Also last month, an Egyptian court overturned [JURIST report] a ban prohibiting formation of religious-based political parties. Some restrictions, however, still exist in the election process such as prohibition of using religious slogans [JURIST report] during campaigns.




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British Columbia Supreme Court upholds anti-polygamy law
Michael Haggerson on November 24, 2011 2:06 PM ET

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[JURIST] The Supreme Court of British Columbia [official website] ruled [judgment] on Wednesday that a law banning polygamy [Criminal Code §293 text] was constitutional. The law was under challenge by two bishops of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS) who claimed that the law infringed on their religious freedom and was not consistent with the Canadian Charter of Rights and Freedoms [text]. The court held, however, that:
[T]he salutary effects of the prohibition far outweigh the deleterious. The law seeks to advance the institution of monogamous marriage, a fundamental value in Western society from the earliest of times. It seeks to protect against the many harms which are reasonably apprehended to arise out of the practice of polygamy. Finally, and not insignificantly, the prohibition is consistent with, and furthers, Canada’s international human rights obligations. In my view, this adds very significant weight to the salutary effects side of the balance.
The court found that there were "a consistent set of harms associated with polygamy," including a higher rate of sexual and physical abuse of women and higher rates of abuse, neglect and emotional problems for children. These harms, the court said, outweighed the "minimal" impact on religious freedom. The bishops' sect of the FLDS has been linked to the Texas-based Yearning for Zion Ranch [NYT report] from which authorities seized 468 children [NYT report] in 2008. The court stated that the law should not apply to minors however.

Polygamy has been an issue throughout the world. In July a polygamous family brought suit challenging Utah's ban on bigamy [JURIST report] as an unconstitutional violation of their civil rights. Polygamy is currently legal and recognized in much of Africa and the Middle East, while it is widely illegal in North and South America, Europe and China. Polygamy—called bigamy when illegal— is criminalized in every state in the US. The UN Committee on the Elimination of Discrimination Against Women [official website] in 2008 urged Saudi Arabia [JURIST news archive] to outlaw polygamy [JURIST report], which it said is by its very nature counter to gender equality. The year before Indonesia upheld marriage laws limiting polygamy [JURIST report], despite teachings in the predominantly Islamic country's largest religion allowing men to take up to four wives. However, in 2006, a Canadian study urged the Canadian federal government to legalize polygamy [JURIST report] to help protect women and children in those relationships.




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Bahrain government committed human rights violations: report
Rebecca DiLeonardo on November 24, 2011 11:08 AM ET

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[JURIST] Bahrain authorities used excessive force and tortured detainees involved in the pro-democracy demonstrations earlier this year, according to a report [text, PDF] released Tuesday by an independent Bahraini government commission. The report, published by the Bahrain Independent Commission of Inquiry (BICI) [official website], concluded that the security forces "violated the principles of necessity and proportionality" in their choice of weapons and in their disregard for the safety of bystanders during the protests. The report further concludes that detained protesters were subject to physical torture, both as a punishment and as a means to coerce confessions. BICI maintains that the government is accountable for the conduct of its security:
The Government believed that the domestic situation reached a point that was threatening the complete breakdown of law and order...A State of National Safety was declared in Bahrain [to restore] public order...The security forces carried out [arrests] without presenting an arrest warrant or informing the arrested individual of the reasons for arrest. In many cases, the security services of the [government of Bahrain] resorted to the use of unnecessary and excessive force, terror-inspiring behaviour and unnecessary damage to property. The fact that a systematic pattern of behaviour existed indicates that this is how these security forces were trained and were expected to behave.
The commission stated that the security forces acted with an expectation of impunity for their actions. On Monday, the Bahrain government admitted the use of excessive force [JURIST report] in the protests. This admission, which was made in anticipation of the independent report, was a reversal of the government's previous defense of its actions [CNN report].

Bahrain continues to deal with the fallout from the pro-democracy protests earlier this year. Last month, a Bahrain court began hearing the appeals of 20 medical staff members [JURIST report] who were convicted in September of participating in the protests against the ruling regime. Earlier in October, Bahrain 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 10 years imprisonment. 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, UN Office of the High Commissioner for Human Rights (OHCHR) [official websites] announced that Bahrain agreed to permit a UN commission [JURIST report] to investigate human rights violations related to protests. In April, human rights organizations including Human Rights Watch (HRW) and Doctors Without Borders (DWB) [advocacy websites] criticized Bahrain for rampant human rights abuses [JURIST report] related to anti-government protests.




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France court allows Noriega extradition to Panama
Jaclyn Belczyk on November 23, 2011 4:32 PM ET

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[JURIST] A French appeals court ruled Wednesday that former Panamanian dictator Manuel Noriega [BBC backgrounder; JURIST news archive] can be extradited to Panama. Noriega faces charges of human rights violations in Panama for crimes allegedly committed during his 1981-1989 rule. He was already convicted on three counts of human rights violations in absentia, and each count carries a 20-year prison sentence. Panamanian President Ricardo Martinelli [official profile, in Spanish] and Panamanian authorities have been seeking Noriega's extradition [JURIST report] to face charges of human rights violations in Panama since April 2010. French authorities ordered his extradition [JURIST report] earlier this year, but it has been held up in court. It is unclear when [CNN report] French Prime Minister Francois Fillon [official website, in French] will sign the extradition order.

A French criminal court sentenced Noriega [JURIST report] to seven years in jail for money laundering in July 2010. He was convicted of laundering $3 million in drug profits by purchasing property in Paris. In April 2010, Noriega was extradited [JURIST report] from the US, where he had served a 17-year sentence on drug charges, after fighting extradition [JURIST report] since 2007. The US Supreme Court declined to reconsider [JURIST report] Noriega's petition to stop the extradition process. His lawyers filed the petition in February 2010 after the Supreme Court denied certiorari [JURIST reports] on the case a month earlier. Noriega, who has been declared a prisoner of war, sought to enforce a provision of the Geneva Convention [ICRC backgrounder] that requires repatriation at the end of confinement. Noriega and his wife were sentenced in absentia [Reuters report] to 10 years in jail by a French court in 1999, but France agreed to hold a new trial if he was extradited.




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Oregon governor puts moratorium on death penalty
Jaclyn Belczyk on November 23, 2011 2:41 PM ET

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[JURIST] Oregon Governor John Kitzhaber [official website] on Tuesday issued a temporary reprieve for death row inmate Gary Haugen and called for an end [press release] to the state's death penalty [JURIST news archive]. The state has executed only two individuals in the last 49 years and each execution was with the prisoner's consent. Kitzhaber said, "I do not believe that those executions made us safer; and certainly they did not make us nobler as a society." He stated:
Oregonians have a fundamental belief in fairness and justice—in swift and certain justice. The death penalty as practiced in Oregon is neither fair nor just; and it is not swift or certain. It is not applied equally to all. It is a perversion of justice that the single best indicator of who will and will not be executed has nothing to do with the circumstances of a crime or the findings of a jury. The only factor that determines whether someone sentenced to death in Oregon is actually executed is that they volunteer. ... I am calling on the legislature to bring potential reforms before the 2013 legislative session and encourage all Oregonians to engage in the long overdue debate that this important issue deserves.
Kitzhaber said that is "convinced we can find a better solution that keeps society safe, supports the victims of crime and their families and reflects Oregon values."

The death penalty remains a controversial issue across the US. Earlier this week, the Connecticut Supreme Court [official website] upheld [JURIST report] the constitutionality of the state's death penalty law. Earlier this month, the Ohio Supreme Court [official website] announced that it was forming a committee to ensure that the death penalty is not administered arbitrarily [JURIST report]. In March, Illinois abolished capital punishment [JURIST report], concluding that there was no way to rid the capital punishment system of its discriminatory flaws. In 2009, New Mexico repealed its death penalty [JURIST report] on similar grounds to Illinois, asserting that the state could not possibly administer the death penalty impartially.




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UN rights chief urges independent probe into Egypt violence
Jaclyn Belczyk on November 23, 2011 1:47 PM ET

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[JURIST] UN High Commissioner for Human Rights Navi Pillay [official profile] on Wednesday condemned the recent violent clashes [press release] between Egyptian security forces and protesters and called for an independent investigation into the situation. Pillay "urge[d] the Egyptian authorities to end the clearly excessive use of force against protestors in Tahrir square and elsewhere in the country, including the apparent improper use of tear gas, rubber bullets and live ammunition." She also called for a "prompt, impartial and independent investigation, and accountability for those found responsible for the abuses that have taken place." Pillay reminded Egyptian authorities that they "have an obligation to provide protection for all and ensure a peaceful and safe environment in the lead-up to next week's crucial elections."

Pillay's comments come on the heels of an Amnesty International [advocacy website] report which concluded that Egypt's ruling military council has committed numerous human rights violations [JURIST report], including abuse of protesters and journalists who voice their dissatisfaction with the government. On Monday, UN Secretary-General Ban Ki-moon [official profile] and a group of independent human rights experts issued a joint statement [JURIST report] "express[ing] alarm at the degree of violence and deterioration of the freedoms of peaceful assembly and association which have led to loss of life in Egypt." Last Friday, as many as 50,000 protesters took to Tahrir Square in Egypt [JURIST report], decrying the military's continued rule over the nation since this year's revolution and were reportedly met with a violent reprisal from police forces. Protests have continued with reports of 35 killed and hundreds more injured.




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ICC prosecutor says Libya can try Gaddafi's son
Jaimie Cremeans on November 23, 2011 1:12 PM ET

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[JURIST] International Criminal Court [official website] Chief Prosecutor Luis Moreno-Ocampo [official profile] said Wednesday the ICC would allow Libya to conduct the trial of Saif al-Islam Gaddafi, son of former Libyan leader Muammar Gaddafi [BBC profile]. Despite concern from human rights groups, including Human Rights Watch [advocacy website], about whether Saif al-Islam Gaddafi can receive a fair trial [HRW report] in Libya, Ocampo said he trusts the new Libyan government will be able to try him fairly [AP report] and maintained that the ICC will not intervene as long as it does not stray from ICC standards. The ICC issued a statement [text] Wednesday clarifying that, "[s]hould the Libyan authorities wish to conduct national prosecutions against the suspect, they shall submit a challenge to the admissibility of the case before Pre-Trial Chamber I. ... Any decision on the admissibility of a case is under the sole competence of the Judges of the ICC." On the issue of the trial of Muammar Gaddafi's former intelligence chief Abdullah al-Senussi, Ocampo denied reports [Global Post report] by Libya's National Transitional Council [official website] that he had been captured.

Ocampo arrived in Libya [JURIST report] Tuesday to discuss details of Saif al-Islam and al-Senussi's trials with Libyan officials and decide where they should be held. Gaddafi's son was captured by Libyan opposition forces Friday after arrest warrants were issued by the ICC for Gaddafi, him and al-Senussi in June. Military and National Transitional Council officials confirmed [Global Post report] al-Senussi's capture Sunday, but that is not being called into question.




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UN rights body passes resolution condemning Syria violence
Jaclyn Belczyk on November 23, 2011 11:18 AM ET

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[JURIST] The UN General Assembly's Human Rights Committee on Tuesday approved a draft resolution [materials] condemning recent human rights violations in Syria [press release; video]. The non-binding resolution, drafted by the UK, France and Germany, passed by a vote of 122-13, with 41 abstentions. The resolution, "Strongly condemns the continued grave and systematic human rights violations by the Syrian authorities, such as arbitrary executions, excessive use of force and the persecution and killing of protesters and human rights defenders, arbitrary detention, enforced disappearances, torture and ill treatment of detainees, including children." It also, "Calls upon the Syrian authorities to immediately put an end to all human rights violations, to protect their population and to fully comply with their obligations under international human rights law, and calls for an immediate end to all violence in the Syrian Arab Republic." The nations that sponsored the resolution hope it will be a first step in bringing the matter back before the UN Security Council [BBC report].

Earlier this month, Human Rights Watch (HRW) [advocacy website] reported that Syrian governmental forces have been committing crimes against humanity [JURIST report], including torture and unlawful killings of anti-government protesters in Homs, Syria [map]. Also this month, the UN Office of the High Commissioner for Human Rights [official website] announced that the death toll of Syrian protesters has exceeded 3,500 [JURIST report]. In October, 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]. The violence has been condemned [JURIST report] by both the UN and the Arab League.




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DOJ and Merck reach settlement agreement in Vioxx suit
Jamie Reese on November 23, 2011 10:10 AM ET

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[JURIST] Merck & Co [corporate website] reached a settlement agreement Tuesday with the US Department of Justice (DOJ) [official website], agreeing to pay $950 million in criminal and civil penalties. The agreement [text, PDF] includes $321 million in criminal fines and $628 million in civil fines as well as submitting a guilty plea to an information [text, PDF] filed by the US Attorney's Office for the District of Massachusetts (USAO) [official website]. The one-count information was filed against Merck for promoting Vioxx [JURIST news archive] for use against rheumatoid arthritis before receiving FDA [official website] approval. Merck has also entered into a corporate integrity agreement through which procedures will be put into place to prevent and detect any violations of company policy or law. Merck said the settlement does not constitute an admission of any liability or wrongdoing [press release] and the company believes they "acted responsibly and in good faith in connection with the conduct at issue." The USAO said [press release] they "will continue to work with law enforcement partners to aggressively investigate and prosecute pharmaceutical companies—no matter how large—when they improperly market their products."

Vioxx was pulled from the market in September 2004 after it was discovered that it led to an increased risk of heart attack. In June 2010, a federal judge in Louisiana found for Merck [JURIST report] in a lawsuit over reimbursements for the prescription painkiller Vioxx filed by the Louisiana Attorney General's Office [official website] and joined [JURIST report] by the state of Florida in 2008. Other lawsuits were filed in Louisiana, California, New Jersey and Texas [JURIST reports]. In April 2010, the US Supreme Court [official website] ruled [JURIST report] that a securities fraud claim filed against Vioxx had not passed its statute of limitations and could proceed. In September 2007, the New Jersey Supreme Court [official website] dismissed a class action lawsuit [JURIST report] filed against Merck, reversing a lower court's decision to grant nationwide class certification in the case. In November 2007, Merck said that it had agreed to pay $4.85 billion to settle [JURIST report] all pending lawsuits regarding its marketing and distribution of Vioxx.




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DOJ challenges Utah immigration law
Jaclyn Belczyk on November 23, 2011 10:06 AM ET

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[JURIST] The US Department of Justice (DOJ) [official website] on Tuesday filed a challenge [complaint, PDF; press release] to Utah's controversial immigration law [HB 497 materials; JURIST news archive]. The measure was signed into law [JURIST report] in March by Utah Governor Gary Herbert [official website] and requires police to check the immigration status of anyone arrested for an alleged felony or serious misdemeanor.The DOJ argues that the law is preempted by federal law because it attempts to establish a state-specific immigration policy. In its complaint, the DOJ said:
Utah's adoption of its own immigration policy disrupts the federal government's ability both to administer and enforce the federal immigration laws including as set forth in the Immigration and Nationality Act, and to establish and pursue federal policies and priorities pertaining to, inter alia, the identification, apprehension, detention and removal of aliens unlawfully in the United States. By contributing to this state-specific immigration policy, the challenged provisions of H.B. 497 represent an attempt to regulate in an area constitutionally reserved to the federal government, forcing a conflict with the federal immigration laws and federal immigration policy, interfering with federal primacy in managing the nation's foreign affairs and in balancing the competing objectives of immigration policy, and impeding the accomplishment and execution of the full purposes and objectives of Congress. Sections 3, 10, and 11 of H.B. 497 are therefore preempted.
A judge for the US District Court for the District of Utah [official website] temporarily blocked the Utah law in May, less than 24 hours after it took effect, following a challenge [JURIST reports] by the American Civil Liberties Union, the National Immigration Law Center [advocacy websites] and other plaintiffs.

The DOJ has filed similar suits challenging immigration laws in Arizona, Alabama and South Carolina [JURIST reports]. Federal judges have enjoined portions of each of those laws, and an appeal of the Arizona law is currently pending before the Supreme Court [JURIST report]. The DOJ is reviewing similar immigration legislation passed recently in Indiana and Georgia [JURIST reports].




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Ninth Circuit consolidates Proposition 8 challenge with claim that judge was biased
Julia Zebley on November 23, 2011 7:14 AM ET

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[JURIST] The US Court of Appeals for the Ninth Circuit [official website] on Tuesday consolidated [order, PDF] the ongoing Proposition 8 [text; JURIST news archive] case with an appeal of a denied motion to vacate [JURIST report] District Judge Vaughn Walker's ruling due to conflict of interest. Walker, who initially overturned Proposition 8 [JURIST report], is a gay man who has been in a committed same-sex relationship for 10 years. Although it was an open secret at the time of trial, Walker did not reveal this until retiring after the ruling. Supporters of Proposition 8, who won the right to defend the law [JURIST report] last week, declared this a conflict of interest that should have forced his recusal, as Walker's long-term relationship implied a vested interest in same-sex marriage being legalized. The only Proposition 8-related matter not consolidated into this hearing is now the release of the original trial videos [JURIST report]. It is speculated the consolidation is designed to provide a clean appeal to the Supreme Court [Metro Weekly report] regardless of how the Ninth Circuit rules.

The battle over Proposition 8, a ballot initiative that amended the state constitution to ban same-sex marriage [JURIST news archive], continues, awaiting a ruling from the the Ninth Circuit. The Ninth Circuit heard oral arguments [video; JURIST report] in Perry v. Brown [case materials] at the end of 2010. The hearing was divided into two one-hour sessions, with the first section focusing on the issue of standing, and the second focusing on Proposition 8's constitutionality. In March, the Ninth Circuit denied a motion [JURIST report] filed by California Attorney General Kamala Harris [official website] to lift the stay order [JURIST report] prohibiting gay couples from marrying while the appeal is pending. Walker's ruling in August 2010 held that the ban violated both the Due Process Clause and the Equal Protection Clause [Cornell LII backgrounders] of the Fourteenth Amendment and held that same-sex marriage was required as part of the fundamental right to marriage affirmed by the Supreme Court in Loving v. Virginia [text].




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Malaysia rights group finds Bush, Blair guilty of war crimes in symbolic trial
Julia Zebley on November 23, 2011 6:46 AM ET

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[JURIST] The Malaysian Kuala Lumpur Foundation to Criminalise War (KLFCW) [official website] on Tuesday found former US president George W. Bush, former UK prime minister Tony Blair [JURIST news archives] guilty of war crimes after a symbolic trial [JURIST report]. The duo was found guilty on charges in connection to the March 2003 invasion of Iraq after a four-day hearing. The trials, headed by former Malaysian premier Mahathir Mohamad [BBC profile], a vocal critic of the Iraq conflict since its inception, have no enforcement power under international or domestic rule of law. Nonetheless, the tribunal plans to try other prominent political figures of the war, including former vice president Dick Cheney and former secretary of defense Donald Rumsfeld [JURIST news archives].

Various human rights groups have filed charges against US and UK officials alleging war crimes committed in Afghanistan and Iraq. In October, the attorney general for British Columbia blocked a lawsuit [JURIST report] filed by the Canadian Centre for International Justice [advocacy website] against Bush on torture allegations. 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. In February, the Center for Constitutional Rights and the European Center for Human Rights [advocacy websites] urged the signatory states of the UN Convention Against Torture (CAT) [text] to pursue criminal charges [JURIST report] against Bush. Other calls to investigate the criminal culpability of Bush and officials in his administration have been rejected consistently by US officials [JURIST report]. In 2010, a former UN official strongly suggested [JURIST report] a war crimes investigation of actions by both sides in the Afghanistan war. In 2009, the UK High Court criticized [JURIST report] its own Ministry of Defense for failure to investigate or release documents regarding a claim of war crimes against UK soldiers in Iraq.




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Malaysia introduces stricter regulations on protests
Brandon Gatto on November 22, 2011 2:11 PM ET

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[JURIST] Malaysia's government on Tuesday introduced legislation that will enforce new restrictions on public demonstrations, including a ban on street protests and other rules that opposition leaders believe are too repressive. Proposed by the National Front [party website], Malaysia's ruling party, and supported by Prime Minister Najib Razak [official profile], the bill, known as the Peaceful Assembly Bill [AP report], is expected to pass through Parliament quickly, and will require demonstrators to give police a 30-day notice of any protest. The police may then impose restrictions on the protest at their discretion, and even reject the proposed time and place for the demonstration. Additionally, street demonstrations are prohibited, as are protests near schools, hospitals, or places of worship. Statements made during protests cannot "promote ill will," and protesters can be fined up to 20,000 ringgit, or $6,200, if they break any of the rules. Although the ruling government party believes that the bill allows Malaysians to express concerns without putting public safety at risk, opposition leaders have accused Razak of reneging on his promise to make Malaysia a freer and more liberal society. Though he did not echo this opinion, Lim Chee Wee, President of the Malaysian Bar [advocacy website], stated that "[i]n its present form, the Bill is more restrictive than present law, and must be improved." Wee then recommended several amendments [press release] that could potentially make the bill more conforming to the Malayasian constitution [text, PDF].

The introduction of the Peaceful Assembly Bill comes just after Razak repealed Malaysia's widely criticized internal security laws [JURIST report], which allowed the imprisonment of individuals deemed to be national security threats for up to two years without trial. Although the prime minister has pledged that his administration will protect civil liberties, the Malaysian government has previously been criticized in response to its handling of protesters. In July, UN Rapporteur on the right to freedom of opinion and expression Frank La Rue asserted [press release] that Malaysia's response to protests on July 9 [JURIST report] was too strong, and that such actions restrict the freedom of association while hindering the democratic process. In support of his claim, La Rue pointed to reports that the harsh reaction from Malaysian authorities resulted in injuries, at least one death, and more than 1,600 arrests in the nation's capital of Kuala Lumpur.




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US trade commission clears Apple in HTC patent case
Jamie Reese on November 22, 2011 1:54 PM ET

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[JURIST] The US International Trade Commission (USITC) [official website] ruled [text, PDF] Monday for Apple [corporate website; Bloomberg backgrounder] on a patent complaint [JURIST report] brought by HTC [corporate website; Bloomberg backgrounder]. The USITC found that Apple had not violated Section 337 of the Tariff Act of 1930 [PDF] by reasons of infringement of Patent Nos. 6,658,146, 6,683,978, 6,775,417 and 7,043,087 [texts]. These patents relate to HTC's recently acquired subsidiary S3 Graphics Co. The USITC ruling rejects the request to limit imports of MAC computers, the iPhone and the iPad. The decision also calls into question the rationale of the S3 acquisition [Bloomberg report] and could put pressure on HTC stock shares. HTC said it may challenge the ruling in the US Court of Appeals for the Federal Circuit [official website], which specializes in patent law.

In July, USITC ruled that HTC infringed two Apple patents [JURIST report] relating to the Android operating system. This ruling came days after Apple filed a complaint against Samsung [JURIST report] in an effort to bar importation of Samsung's smartphones and tablets. Apple claimed Samsung's "Galaxy" line copies its iPhone and iPad technology. This complaint came just weeks after Samsung filed a similar complaint [JURIST report] seeking to prevent Apple from importing iPads and iPhones. Samsung claimed Apple violated five patents also related to smartphones and tablets. In March 2010, Apple also filed suit against HTC [JURIST report] in the US District Court for the District of Delaware [official website] for 10 patents involving various areas of technology.




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Philippines ex-president sued by relatives of massacre victims
Sarah Posner on November 22, 2011 12:10 PM ET

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[JURIST] The relatives of 57 people killed in a 2009 Philippines massacre on Tuesday sued former president Gloria Macapagal Arroyo [BBC profile; JURIST news archive] for allegedly assisting the perpetrators. The families seek five million pesos (USD $345,000) from Arroyo for damages caused by her alleged support of the Ampatuan family [AFP report], whom government prosecutors claim were behind the November 2009 Maguindanao Massacre [CSM backgrounder; JURIST news archive]. Arroyo has denied any wrongdoing. The lawsuit comes at a particularly difficult time for Arroyo after Philippine authorities formally charged [JURIST report] her on Saturday with electoral sabotage, a day after she was arrested on a warrant [text] issued for charges of corruption and election fraud that occurred during her time as president.

Last week, Arroyo and her husband attempted to leave the country after posting bond in order to seek medical treatment for Arroyo, but the government refused to allow them transit. In June, the Philippines Supreme Court [official website] said that it would allow the live broadcast [JURIST report] of the November 2009 Maguindanao Massacre trial subject to guidelines set by the court. The court decided to allow broadcast coverage in this particular situation involving the trial of several members of a clan accused of killing 57 people, including 31 journalists, supporting a rival political candidate. Earlier in June, a Philippine court froze USD $23 million worth of assets [JURIST report] owned by the Ampatuan family, who are accused of ordering the 2009 slayings, while investigators determine how the Ampatuans accumulated accumulated the assets.




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Connecticut high court upholds state's death penalty law
Max Slater on November 22, 2011 11:48 AM ET

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[JURIST] The Connecticut Supreme Court [official website] on Monday upheld [opinion, PDF] the state's death penalty [JURIST news archive] law. The court's ruling affirmed the death sentence of a man convicted of murdering a 13-year old boy with a sledgehammer in 1997. In its defense of the death penalty, the court invoked provisions of the Connecticut Constitution [text] that permit capital punishment, declaring, "In article first, § 8, and article first, § 19, our state constitution makes repeated textual references to capital offenses and thus expressly sustains the constitutional validity of such a penalty in appropriate circumstances." The majority opinion claimed that these state constitutional provisions, which closely mirror the Fifth, Sixth and Eighth Amendments [text] to the US constitution imply that the death penalty does not constitute cruel and unusual punishment, nor does it violate persons' due process rights. The dissenting judge [text, PDF] disagreed with the majority's reasoning, posing the rhetorical question, "[has] our thirst for this ultimate penalty now been slaked, or do we, the people of Connecticut, continue down this increasingly lonesome road?" The court's decision could have a ripple effect on future death penalty jurisprudence in Connecticut.

The death penalty continues to arouse legal, political and moral controversy nationwide. Two weeks ago, the US Supreme Court [official website] declined [JURIST report] to hear the case of a Texas death row inmate who was allegedly convicted partially on the basis of race. Earlier in November, the Ohio Supreme Court [official website] announced [JURIST report] that it was forming a committee to ensure that the death penalty was not administered arbitrarily. In March, Illinois abolished capital punishment [JURIST report], concluding [press release] that there was no way to rid the capital punishment system of its discriminatory flaws. In 2009, New Mexico repealed its death penalty [JURIST report] on similar grounds to Illinois, asserting that the state could not possibly administer the death penalty impartially. In 2005, the Connecticut House of Representatives [official website] voted down legislation[JURIST report] that would have eliminated the state's death penalty.




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UK appeals court rules Iraq abuse probe lacks independence
Jennie Ryan on November 22, 2011 11:20 AM ET

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[JURIST] A UK appeals court on Tuesday ruled [judgment text] that a special commission charged with investigating the alleged abuse of Iraqi civilians in British-controlled detention facilities between March 2003 and December 2008 lacks independence. The Court of Appeals ordered Defence Secretary Liam Fox [official website] to reconsider his refusal to open a single public inquiry into allegations of UK military abuse. The Court of Appeals also found that the existing inquiries into the abuse allegations fail to meet the requirements of Article 3 of the European Convention on Human Rights [text] which protects against inhumane treatment. This decision reverses a UK High Court decision from December 2010 denying the appeal [JURIST report] of more than 100 Iraqi citizens to open a single public inquiry into allegations of abuse by members of the British Armed Forces. The High Court previously held that the inquiries initiated by the Iraq Historic Allegations Team (IHAT) were sufficient and that further public inquiry would be unnecessary in this case. Lead claimant Ali Zaki Mousa said [press release] that the decision "has restored our confidence in the British people."

The hearings into Fox's refusal to open public inquiries began in November 2010 [JURIST report]. The Public Interest Lawyers (PIL) [law firm website], the group representing the Iraqi civilians, submitted videos to support claims that UK soldiers and interrogators abused Iraqi detainees in British internment facilities. In September 2010, a Ministry of Defence (MOD) [official website] report found that the UK's treatment of detainees complies with domestic and international law [JURIST report]. In July 2010, UK Prime Minister David Cameron [official website] announced that he would create a panel [JURIST report] to investigate claims that British government agents were complicit in the torture of terrorism suspects held overseas. The investigation stems from a civil action, brought by 12 ex-detainees who allege that British agents participated in their abuse while they were held in prisons in Pakistan, Morocco and other countries. The UK will ask them to drop their lawsuits in exchange for possible compensation and a promise that the impending inquiry will fully investigate their claims. In June, the UK government indicated that it will issue a new set of regulations regarding the use of information obtained via torture [JURIST report] as claims of complicity in torture were made against the government in a Human Rights Watch (HRW) [advocacy website] report [materials] released the same day.




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Amnesty report: Egypt military rulers abused protesters, violated human rights
Rebecca DiLeonardo on November 22, 2011 11:04 AM ET

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[JURIST] The ruling military council in Egypt has committed numerous human rights violations, including abuse of protesters and journalists who voice their dissatisfaction with the government, according to an Amnesty International (AI) [advocacy website] report [text, PDF; press release] released Tuesday. The report alleges that the Supreme Council of the Armed Forces (SCAF) [NYT backgrounder] has used violence and torture to put down government protests and discourage political dissent. The report criticizes SCAF for its conduct despite its repeated promises to protect free expression and encourage political openness. AI expressed concern that the human rights violations may be equal to those committed under former president Hosni Mubarak [JURIST news archive]:
In the name of ensuring security and stability, the authorities have committed numerous human rights violations, ignoring the very demands for social justice and fundamental freedoms that triggered the uprising. Indeed, 10 months later, the SCAF has been moving further and further from meeting the human rights demands voiced by millions of Egyptians during the "25 January Revolution" and the promises that ensued from it. Since February, the SCAF have issued a number of laws that have been detrimental to the protection of human rights. Some were meant to appease sentiments of insecurity ... others appear aimed at discouraging criticism of the authorities and protest. The recent endorsement in full of the Emergency Law and its expansion ... has been considered the greatest erosion of rights since the January uprising.
AI has called for SCAF to end impunity for military officials who abuse Egyptians and to allow an independent agency to investigate alleged human rights violations. Also Tuesday, the Egyptian military announced its intention to turn over governing power by July 1, 2012 [AP report].

On Monday, UN Secretary-General Ban Ki-moon [official profile] and a group of independent human rights experts issued a joint statement [JURIST report] "express[ing] alarm at the degree of violence and deterioration of the freedoms of peaceful assembly and association which have led to loss of life in Egypt." Last Friday, as many as 50,000 protesters took to Tahrir Square in Egypt [JURIST report], decrying the military's continued rule over the nation since this year's revolution, and on Saturday were reportedly met with a violent reprisal from police forces. The Muslim Brotherhood (MB) [party website] organized the protests earlier this week [press release] in an attempt to force the Supreme Council of the Armed Forces to "intervene and withdraw the supra-constitutional principles proposed by Deputy Prime Minister Ali Elselmy." The MB believes the proposed law [text] would integrate the military into the political system in violation of the constitution [text]. Since the protests began, reportedly more than 500 people have been injured and 18 arrested [Al Ahram report]. Struggles began when riot police attempted to dismantle a tent camp [Al Jazeera report] memorializing activists killed in the revolution. Latest reports reveal that protesters were attempting to storm the Ministry of the Interior [official website] and were deterred by police firing rubber bullets. Many fear the recent protests will impede upcoming elections. The November 28 election is considered the first free election following the overthrow [JURIST report] of Mubarak in February.




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Turkish journalists on trial for alleged coup plot
Sarah Posner on November 22, 2011 11:03 AM ET

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[JURIST] Trial began Tuesday for 13 journalists accused of plotting to overthrow the Islamic government in Turkey. The trial lasted only four hours before being adjourned to await a decision from Turkey's high court about whether the presiding judge can hear the case amid allegations by the defense counsel that the judge lacks impartiality [AP report]. After re-convening December 26, the court will decide whether the journalists, who have been in jail for nine months, will be released. Two of the defendants are accused of being part of Ergenekon [BBC backgrounder; JURIST news archive], a secular group suspected of planning to overthrow [JURIST report] the ruling Justice Development Party (AKP) [party website, in Turkish]. The 13 journalists claim that the charges are no more than an attempt to silence opposition based on allegedly fabricated evidence [BBC report]. However, the government maintains that the charges are based solely on the defendants' criminal activities and not the writings or words of the journalists. The case has sparked division in Turkey over media rights in the country.

In August, a Turkish court issued arrest warrants [JURIST report] for seven generals and admirals accused of creating anti-government websites in 2009. A number of other senior military officials are in detention for a separate investigation of the Balyoz Security Operation Plan (also known as "Operation Sledgehammer") [Taraf report, in Turkish; JURIST news archive], a military plot to overthrow the Islamic-rooted government. The "Sledgehammer" plot is similar to the Ergenekon conspiracy. The Ergenekon group is alleged to be involved in bombings, political assassination plots and the death of journalist Hrant Dink. The probe into the Ergenekon conspiracy has been criticized as an attempt by the AKP to silence opposition and further its imposition of Islamic principles [JURIST report] in violation of Turkey's secular constitution. Trials against the Ergenekon group [JURIST report] opened over two years ago with more than 200 suspects in custody.




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Bahrain admits use of excessive force against pro-democracy protesters
Jennie Ryan on November 22, 2011 10:08 AM ET

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[JURIST] The Bahrain [JURIST news archive] government on Monday admitted to the use of excessive force against pro-democracy protesters in the region early this year. The admission is a reversal of the country's previous characterization of its crackdown on protesters. Prior to this admission, the Bahraini government defended its actions [CNN report], which allegedly resulted in the deaths of more than 30 protesters, as necessary to maintain public safety. The government's statement comes just days before a report is expected on the findings of the Bahrain Independent Commission of Inquiry (BICI) [official website] is set to be released. The BICI, assembled by King Hamad bin Isa Al Khalifa [official proflie], is tasked with conducting an investigation into the treatment of protesters by government officials. The BICI report is expected to be released Wednesday.

Bahrain continues to deal with the fallout from the pro-democracy protests earlier this year. Last month, a Bahrain court began hearing the appeals of 20 medical staff members [JURIST report] who were convicted in September of participating in the protests against the ruling regime. Earlier in October, Bahrain 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 10 years imprisonment. 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, UN Office of the High Commissioner for Human Rights (OHCHR) [official websites] announced that Bahrain agreed to permit a UN commission [JURIST report] to investigate human rights violations related to protests. In April, human rights organizations including Human Rights Watch (HRW) and Doctors Without Borders (DWB) [advocacy websites] criticized Bahrain for rampant human rights abuses [JURIST report] related to anti-government protests.




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South Africa lawmakers approve controversial secrecy bill
Alexandra Malatesta on November 22, 2011 9:50 AM ET

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[JURIST] The South African National Assembly (NA) [official website] passed a controversial state secrets [JURIST news archive] bill on Tuesday designed to protect state secrets related to national security. The African National Congress (ANC) [party website], which holds a majority in the NA, was responsible for pushing the legislation through by a vote of 229-107. The bill would criminalize the possession and distribution [Reuters report] of information valuable to the state and could impose imprisonment of up to 25 years. The bill has received extensive criticism for being reminiscent of Apartheid [BBC backgrounder; JURIST news archive] legislation and exposing the country to potential corruption. Nobel Prize recipient Archbishop Desmond Tutu [BBC profile] has publicly criticized the bill by labeling it insulting to the field of journalism [BBC report] and a step backwards from achieving democracy. The bill must pass through the National Council of Provinces for further consideration [All Africa report] and obtain the signature of the president.

Other nations have also struggled with balancing citizens' rights with the need to protect state secrets. In August, US Attorney General Eric Holder [official profile] invoked the state secrets privilege to block evidence [JURIST report] in a lawsuit against the FBI over its investigation into Muslim mosques. Holder had ordered a review [JURIST report] of all government claims invoking the state secrets privilege in 2009. Last year, the Chinese government revised [JURIST report] its often-criticized state secrets law to require Internet and telecommunications companies to inform on customers who share state secrets.




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Egypt military council issues anti-corruption law
Alexandra Malatesta on November 22, 2011 9:17 AM ET

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[JURIST] Egypt's Supreme Council of the Armed Forces (SCAF) [NYT backgrounder] on Tuesday announced an amendment to a criminal law that would punish those who have contributed to the corruption of politics and damaged the interests of the nation. If convicted, repercussions would include a five-year bar from joining political life [Reuters report], removal from any positions of leadership and the loss of one's membership in parliament and local counsel. Protesters criticized the military's announcement for being "too little, too late" and expressed fear that criminal action would be too slow to prevent former members of Hosni Mubarak's party, the National Democratic Party (NDP), from running in and impeding the upcoming election. Egypt's deputy prime minister for political development Ali al-Selmi said that the law would apply to officials [JURIST report] who are found guilty of financial crimes and abuse of power including officials elected to parliament. However, there is still concern that without an official ban on former NDP members, who have used wealth and connections to secure parliamentary seats in the past to advance personal interests, they may once again regain power. Elections for the lower house of parliament are set to begin on November 28.

Proposals for this amendment to the Egyptian political corruption law were criticized by Human Rights Watch (HRW) [advocacy website] in October for their potential for abuse [JURIST report]. HRW reported 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 feared individuals will be convicted simply for association with certain political groups and not on the basis of actual criminal activity. While HRW recognized the interest the new government has in keeping corrupt former officials from affecting the direction the country's government takes into the future, it maintained 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."




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ICC prosecutor in Libya to discuss trials of Gaddafi's son, intelligence chief
Jaimie Cremeans on November 22, 2011 9:04 AM ET

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[JURIST] International Criminal Court (ICC) [official website] Chief Prosecutor Luis Moreno-Ocampo [official profile] arrived in Libya [press release] Tuesday to discuss plans for the trials of recently arrested Saif al-Islam Gaddafi, son of late former Libyan leader Muammar Gaddafi [BBC profile], and Abdullah al-Senussi, former Libyan chief of intelligence, for crimes against humanity. Ocampo will meet with Libyan officials to find out what their national plan for trials and proceedings are, as well as discuss where the two men will be tried for international crimes. Ocampo said:
Saif Al-Islam Gaddafi and Abdullah Al-Senussi must face justice. ... Their arrest is a crucial step in bringing to justice those most responsible for crimes committed in Libya. This is not a military or political issue, it is a legal requirement.
Ocampo also said that it will ultimately be up to ICC judges to decide where the trials will be held.

Saif al-Islam Gaddafi was arrested [JURIST report] by Libyan opposition forces Friday, and the arrest of al-Senussi was confirmed [Channels report] by the Libyan National Transitional Council [official website] Monday. The ICC issued arrest warrants for Muammar Gaddafi, his son and al-Senussi in June, after Ocampo requested the warrants [JURIST reports] in May. The warrants were issued for crimes against the Libyan people, including shooting, torture, unlawful arrests and forced disappearances of civilians. Muammar Gaddafi was killed [JURIST report] by opposition forces in October.




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UN rights experts urge restraint in Egypt
Drew Singer on November 22, 2011 8:42 AM ET

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[JURIST] UN Secretary-General Ban Ki-moon [official profile] and a group of independent human rights experts on Monday called on Egyptian authorities to guarantee the protection of human rights and civil liberties during the country's most recent incidents of civilian-police clashes [JURIST report]. The rights experts, including the UN special rapporteurs on summary executions, freedom of expression, human rights defenders and freedom of peaceful assembly issued a joint statement [text] "express[ing] alarm at the degree of violence and deterioration of the freedoms of peaceful assembly and association which have led to loss of life in Egypt." The secretary-general's statement [text] reads in its entirety:
The Secretary-General is deeply concerned about the violence in Egypt during the last few days, particularly in Cairo. He deplores the loss of life and the many injuries. The Secretary-General calls on the transitional authorities to guarantee the protection of human rights and civil liberties for all Egyptians, including the right to peaceful protest. He urges restraint and calm by all parties to enable a peaceful and inclusive electoral process as part of Egypt's transition to democracy and the early establishment of civilian rule."
Many fear the recent protests will impede upcoming elections. The November 28 election is considered the first free election following the overthrow [JURIST report] of Hosni Mubarak [JURIST news archive] in February.

As many as 50,000 protesters took to Tahrir Square in Egypt on Friday, decrying the military's continued rule over the nation since this year's revolution, and on Saturday were reportedly met with a violent reprisal from police forces. The Muslim Brotherhood (MB) [party website] organized the protests earlier this week [press release] in an attempt to force the Supreme Council of the Armed Forces (SCAF) [NYT backgrounder] to "intervene and withdraw the supra-constitutional principles proposed by Deputy Prime Minister Ali Elselmy." The MB believes the proposed law [text] would integrate the military into the political system in violation of the constitution [text]. Since the protests began, reportedly more than 500 people have been injured and 18 arrested [Al Ahram report]. Struggles began when riot police attempted to dismantle a tent camp [Al Jazeera report] memorializing activists killed in the revolution. Latest reports reveal that protesters were attempting to storm the Ministry of the Interior [official website] and were deterred by police firing rubber bullets.




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US Army sergeant sentenced to 5 years in Afghan civilian killings
Drew Singer on November 22, 2011 7:27 AM ET

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[JURIST] A five-soldier jury on Friday convicted Army Staff Sgt. David Bram, 27, for a list of charges stemming from his attempt to cover up drug use in his platoon and also to kill Afghan civilians. Bram was sentenced to five years in prison [News Tribune report] for solicitation to commit premeditated murder and failure to report crimes including murder. He was found not guilty on charges relating to an alleged incident where he planted an AK-47 magazine near an Afghan civilian after he shot and killed him in January 2010. Bram is 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. A military investigation revealed that soldiers from the brigade had been plotting since 2009 to kill unarmed Afghans and stage them to look like casualties of combat. Another soldier, Specialist Jeremy Morlock pleaded guilty [JURIST report] in March to three counts of murder as well as single counts of assault, conspiracy, obstructing justice and illegal drug use in exchange for a maximum sentence of 24 years in prison. Morlock described Bram's involvement in his plea agreement, claiming that Bram overhead other soldiers planning civilian deaths and told Morlock that it was clear to go ahead with one of the killings in January 2010. Bram faced up to 21 years in prison if convicted of all charges against him.

This does not mark the first time Bram will face charges before a military tribunal for misconduct. Bram was court-martialed last year [JURIST report] for charges unrelated to the murders. He was accused of severely beating an Army private in his unit to keep the soldier from informing superiors about alleged drug abuse within the unit. The charges included conspiracy to commit assault and battery, unlawfully striking another soldier, violating a lawful order, dereliction of duty, cruelty, maltreatment and endeavoring to impede an investigation. The probe into 12 members of the 5th Stryker Brigade regarding the civilian deaths began in May 2010 [JURIST report]. Staff Sgt. Robert Stevens, another member of the brigade, pleaded guilty in December [JURIST report] to shooting two unarmed Afghan farmers following a plea agreement that will allow him to remain in the military after serving a nine month sentence and testifying against other soldiers accused of terrorizing civilians.




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Bangladesh war crimes tribunal begins first trial
Sung Un Kim on November 21, 2011 3:02 PM ET

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[JURIST] The Bangladesh International Crimes Tribunal (ICTB) [Facebook page] began its first trial on Sunday for crimes against humanity committed during the Bangladesh Liberation War of 1971 [Bangladesh News backgrounder]. The first suspect in this trial is Delwar Hossain Sayedee, a former member of Parliament in the National Assembly of Bangladesh [official website, in Bengali] and one of the leaders of the Bangladesh Jamaat-e-Islami party [official website, GlobalSecurity backgrounder]. He has been charged with 20 crimes [Hindustan Times report] contained in the International Crimes (Tribunals) Act of 1973 [text, PDF] including genocide, arson, rape and torture. If Sayedee is found guilty, he will face the death penalty. Four other leaders from Sayedee's Jamaat-e-Islami party and two from the Bangladesh Nationalist Party (BNP) [official website] are also facing trials in the near future.

The trial is the result of consistent effort and persistence of the ICTB. Last week, ICTB prosecutors filed an application [JURIST report] for formal charges against a former leader who allegedly committed crimes against humanity during the 1971 Liberation War. This application was filed in response to ICTB's request [JURIST report] for a submission of formal charges. However, the trial process faced some concerns when Human Rights Watch [advocacy website] pointed to reports showing threats of violence and arrest against defense lawyers and witnesses. HRW urged Bangladesh to stop such harassment [JURIST report] in order to have a legitimate trial against the accused. The trial was delayed [JURIST report] last month because the defense lawyers asked the court to review the charges against Sayedee. The court accepted 20 out of 31 charges [Al Jazeera report] that were filed [JURIST report] in July by the Bangladesh prosecutors.




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Philip Morris sues to block new Australia tobacco label requirements
Jerry Votava on November 21, 2011 1:12 PM ET

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[JURIST] Philip Morris Asia Ltd. (PMA) [corporate website] on Monday initiated legal proceedings [press release] on behalf of its Australian subsidiary Philip Morris Ltd. [corporate website] against the Australian government to block new plain package labeling requirements for tobacco products set to go into effect in December 2012. The company is also seeking compensation for the loss of value of its trademarks and Australian investments. The new labeling requirements were passed by the Australian Senate [JURIST report] last week followed by the passage in the Australian House [press release] on Monday. One hour after the legislation passed, PMA, a Hong Kong based company, filed a Notice of Arbitration under Australia's Bilateral Investment Treaty with Hong Kong [text, PDF] which was signed in 1993. PMA spokesperson Anne Edwards commented on the announcement:
We are left with no option. The Government has passed this legislation despite being unable to demonstrate that it will be effective at reducing smoking and has ignored the widespread concerns raised in Australia and internationally regarding the serious legal issues associated with plain packaging.
The new regulations require that cigarettes be sold in generic, olive green packages, without branding or logos. The packages will also have graphic warnings [AUS Health Dept. backgrounder] of the potential health risks of smoking.

Tobacco packaging is at issue in the US as well. Earlier this month a judge for the US District Court for the District of Columbia [official website] granted a temporary injunction to block the implementation [JURIST report] of new requirements of graphic image and textual warning labels imposed by the Family Smoking Prevention and Tobacco Control Act (FSPTCA) [HR 1256 text]. A group of four tobacco companies had sued the US government [JURIST report] in August claiming that new cigarette labeling regulations [FDA materials] violate their First Amendment [text] rights. In 2009, US President Barack Obama [official website] signed the FSPTCA into law [JURIST report], granting the FDA certain authority to regulate tobacco products. The legislation heightens warning-label requirements, prohibits marketing "light cigarettes" as a healthier alternative and allows for the regulation of cigarette ingredients.




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Japan high court upholds death sentence for cult member involved in nerve gas attack
Jamie Davis on November 21, 2011 10:53 AM ET

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[JURIST] Japan's Supreme Court [official website, in Japanese] on Monday upheld the death sentence of Aum Shinrikyo [FAS backgrounder] member Seiicho Endo who was sentenced to death in 2002 following his conviction for playing a central role in two nerve gas attacks [CW Terrorism Tutorial] in 1994 and 1995. The court let the death sentence stand [Japan Times report] after rejecting an appeal filed by Endo's lawyers who claimed that he did not execute or plan the attacks and was brainwashed by the cult's founder. Endo is the thirteenth member of the Japanese cult convicted of being involved in the gas attacks to have his death sentence finalized while none of the men have been put to death. Lawyers for Endo have 10 days to file an appeal with the court to correct the ruling. If that appeal is dismissed, Endo's death sentence will be finalized. No ruling has ever been overturned using this appeal procedure.

The group's leader, Shoko Asahara, was sentenced to death [JURIST report] after he was convicted of planning and carrying out a series of crimes and murdering a total of 27 people in 13 criminal cases. In 2006, the Tokyo high court upheld [JURIST report] Masami Tsuchiya's death sentence after he was convicted for aiding the cult in developing the gas used in the two attacks. The nerve gas attacks in Japan resulted in the deaths of 12 people and thousands of injuries.




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Sri Lanka president receives report on alleged war crimes
Jennie Ryan on November 21, 2011 10:46 AM ET

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[JURIST] Sri Lanka's Lessons Learnt and Reconciliation Commission (LLRC) [official website] on Sunday delivered its final report on alleged abuses committed during the country's civil war to President Mahinda Rajapaksa [official website]. The LLRC is a government appointed commission that has been investigating war crimes and crimes against humanity said to have occurred during the final stages of the conflict with the Liberation Tigers of Tamil Eelam (LTTE) [JURIST news archive]. The commission collected evidence from numerous domestic sources including former rebels and government officials. International rights groups refused to cooperate with the LLRC [AP report] out of concern that the panel may be pro-government and does not meet international standards. The report will not be released publicly until it is presented to the Sri Lankan Parliament [official website].

In September, Sri Lanka announced that it will continue to outlaw [JURIST report] the LTTE and detain terror suspects indefinitely despite lifting emergency laws. In August, the Sri Lankan government announced it would lift the emergency laws [JURIST report] that have been in place for 30 years, though Parliament would renew [text] some provisions temporarily. Most clauses of the Public Security Ordinance, which permits suspects to be detained indefinitely and without charge, have already been abolished. Sri Lankan Prime Minister DM Jayaratne [official website] told Parliament that some clauses would remain necessary, even though the civil war ended in 2009. The Sri Lankan emergency laws have been in a state of flux in recent years. Sri Lankan lawmakers voted last year to extend the state of emergency [JURIST report] but reduced some of the toughest provisions.




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Cambodia genocide tribunal opens trial of Khmer Rouge leaders
Jennie Ryan on November 21, 2011 10:08 AM ET

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[JURIST] The Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website] on Monday officially opened the trial [case materials] of three former Khmer Rouge officials charged with crimes against humanity, breach of international law and genocide. Prosecutors began their opening statements in the trial against Nuon Chea [profile], the Khmer Rouge's chief ideologist, Khieu Samphan [profile], a former head of state, and Ieng Sary [profile], the former foreign minister. A fourth defendant, Ieng Thirith [profile], was ruled unfit to stand trial and ordered to be released [JURIST report] by the ECCC last week because she suffers from Alzheimer's. Prosecutors filed an immediate appeal [JURIST report] of the decision to release Ieng Thirith. 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. UN High Commissioner for Human Rights Chief Navi Pillay welcomed the opening of the trial [press release].

In October, defense lawyers for Nuon filed a lawsuit [JURIST report] against Prime Minister Hun Sen [BBC profile] for interfering with the UN-backed war crimes tribunal. Nuon'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. In September, the ECCC ordered the trials 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 [press release] in the case against the elderly defendants. The first trial will focus on the beginning two phases of population movement and allegations of crimes against humanity, including murder, persecution not on religious grounds and forced disappearances associated with the first phases of population movement. Subsequent trials will focus on the third phase of population movement, genocide, persecution based on religious grounds and violation of the Geneva Conventions of 1949 [ICRC backgrounder].




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UN panel releases summary on risk management in face of increased environmental disasters
Ashley Hileman on November 20, 2011 1:26 PM ET

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[JURIST] The Intergovernmental Panel on Climate Change (IPCC) [official website], a UN-led scientific panel, on Saturday released the Summary for Policymakers [PDF] of the Special Report on Managing the Risks of Extreme Events and Disasters to Advance Climate Change Adaptation (SREX). The summary highlights a number of options [press release] available to policymakers to decrease the risk of disasters as well as to lessen their impact in areas that have historically been more vulnerable than others. One key finding contained within the summary relates to the effect of increased greenhouse gases, which many scientists attribute to the increase in maximum and minimum daily temperatures. The summary also indicates that those communities that are the most vulnerable and thus experience the most exposure to these types of disasters are "generally the outcome of skewed development processes such as those associated with environmental degradation, rapid and unplanned urbanization in hazardous areas, failures of governance, and the scarcity of livelihood options for the poor." As a result, the summary calls on policymakers to consider a range of measures in order to better manage the risks posed by extreme events and disasters, from sustainable land management and land use planning to improvements in governance and technology. The summary was released [WSJ report] weeks before global environmental officials will gather in Durban, South Africa, for climate-change talks. The full report is set to be released in February 2012.

In July, the UN Security Council [official website] made their first official statement [JURIST report] implicating climate change as a serious threat to world peace and security. At the urging of Germany, which released a Concept Note [text] to lead the discussion, the Security Council debated global warming [EPA materials; JURIST news archive] for the first time since 2007. Although Germany pushed for plans of action to be produced on extreme temperatures, rising sea-levels, climate refugees and food shortages, the Council ended up issuing a brief statement instead. The language was reportedly not as strong as some of the nations wanted [BBC report], as Russia pushed for the phrase "possible security implications" in the official text, and denied the other countries the creation of a "green helmets" peacekeeping force [Guardian report] that would step into conflicts where environmental resources become scarce. The statement did affirm that depleting resources has been, and will continue to be, the cause of several international conflicts.




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Libya prime minister assures fair trial for Gaddafi son
Ashley Hileman on November 20, 2011 12:14 PM ET

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[JURIST] Libyan Prime Minister Abdurrahim al-Keib on Saturday pledged that Saif al-Islam Gaddafi will receive a fair trial. A fugitive since his father's regime fell last month [JURIST report], the highest-profile son of deceased former dictator Muammar Gaddafi [BBC obituary; JURIST news archive] was arrested [JURIST report] on Friday in the desert near the southern city of Sabha. He remains in custody in Zintan, where al-Keib trusts militia will care for him [BBC report] until legal proceedings begin. Saif al-Islam is wanted [JURIST report] by the International Criminal Court (ICC) [official website] for crimes against humanity [warrant, PDF]. Discussions regarding the location of the trial are expected to take place soon, amid concerns that attempts to try him outside of Libya could prove very unpopular. The National Transitional Council (NTC) [official website] has made statements addressing its expectations that the trial will be held in Libya.

ICC Chief Prosecutor Luis Moreno-Ocampo [official profile] said Saturday that he will go to Libya in the next week [Reuters report] to discuss Saif al-Islam's fate. Earlier this month Ottilia Maunganidze [profile], a researcher at the Institute for Security Studies [website], wrote that the NTC must meet its international obligations [JURIST op-ed] and ensure justice for human rights violations by surrendering Saif al-Islam to the ICC. Edsel Tupaz of Tupaz & Associates and Daniel Wagner [profiles] of Country Risk Solutions wrote this month that while Libya needs a "strategically targeted court system" with a specialized war crimes court [JURIST op-ed] at its core, currently there is no avoiding "the fact that there are no domestic judicial mechanisms [in Libya] ... to enforce the voice of the ICC." Ocampo last month stated that he has evidence against Saif al-Islam [JURIST report] for his role in planning attacks on Libyan civilians. According to Ocampo there is "substantial evidence" that Saif al-Islam hired mercenaries to assist him in carrying out plans to attack demonstrators that protested the rule of his father. Libyan rebel leaders allegedly captured Saif al-Islam [JURIST report] in August, but he was free by September.




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ICTY prosecutors seek to speed up Mladic trial, reduce evidence
Maureen Cosgrove on November 20, 2011 10:42 AM ET

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[JURIST] Prosecutors at the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] on Friday proposed a reduction in the amount of evidence they planned to present against former Serbian general and alleged war criminal Ratko Mladic [ICTY backgrounder, PDF; JURIST news archive] in an effort to speed up his trial. The prosecutors are asking the court to reduce by nearly one half [BBC report] the number of crimes they had intended to prove. Mladic would nevertheless be tried on all 11 charges, including two counts of genocide. The request came one day after a panel of ICTY judges ordered [text, PDF; ICTY press release] the appointment of a medical expert to conduct a medical examination and issue a report on Mladic's physical condition.

In October, the ICTY prosecutor refused to seek further appeal [JURIST report] of the tribunal's refusal to split Mladic's trial into separate actions: one for his 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]. 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]. 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 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.




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Brazil president creates truth commission to probe human rights abuses
Maureen Cosgrove on November 20, 2011 10:06 AM ET

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[JURIST] Brazilian President Dilma Rousseff [BBC profile] on Friday signed a law [press release, in Portuguese] establishing a truth commission to investigate human rights abuses perpetrated by the military from 1946 to 1988. 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. Nearly 500 people were killed or abducted [AP report] by the military-controlled government, and others, including political leaders, were tortured. Brazil's Chamber of Deputies [official website, in Portuguese] approved the bill [JURIST report] in October. The seven commission members, appointed by Rousseff, must complete the report within two years. Rousseff also signed a law that limits the amount of time certain documents can be kept from the public to 50 years, allowing Brazilians the right to obtain undisclosed government information.

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 similar amnesty laws. In October, 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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Ban Ki-moon to visit Myanmar, praises ongoing reforms
Julia Zebley on November 19, 2011 3:05 PM ET

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[JURIST] UN Secretary-General Ban Ki-moon [official profile] announced on Saturday that he hopes to visit Myanmar soon, after meeting [UN News Centre report] with President Thien Sein [BBC backgrounder]. Ban also congratulated Sein on the country's strive toward democracy, as well as its naming as new chair of the Association of Southeast Asian Nations (ASEAN). The Myanmar National Human Rights Commission (MNHRC) last week urged Sein to release political prisoners [JURIST report]. In an open letter to Sein published in three state-owned newspapers, the MNHRC indicated that domestic and international support would follow the prisoners' release. Sein had granted amnesty to 6,359 prisoners in October following a similar open letter issued by the MNHRC. Ban welcomed the release of political prisoners by Sein last month, while urging the government to release all political prisoners [JURIST report] in accordance with the rule of law. It was also announced last week that US Secretary of State Hillary Clinton [official website] would be visiting the nation next month. Ban's visit will be finalized within the next few months.

Last month, 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 pro-democracy leader Aung San Suu Kyi [BBC profile; JURIST news archive]. 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. Myanmar's government formed the MNHRC [JURIST report] in September 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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Egypt protesters decry ruling military council, clash with police
Julia Zebley on November 19, 2011 2:15 PM ET

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[JURIST] As many as 50,000 protesters took to Tahrir Square in Egypt on Friday, decrying the military's continued rule over the nation since the this year's revolution, and on Saturday were met with a reported violent reprisal from police forces. The Muslim Brotherhood (MB) [official website] organized the protests earlier this week [press release] in an attempt to force the Supreme Council of the Armed Forces (SCAF) [NYT backgrounder] to "intervene and withdraw the supra-constitutional principles proposed by Deputy Prime Minister Ali Elselmy." The MB believes the proposed law [text] would integrate the military into the political system in violation of the constitution [text]. Since the protests began, reportedly more than 500 people have been injured and 18 arrested [Al Ahram report]. Struggles began when riot police attempted to dismantle a tent camp [Al Jazeera report] memorializing activists killed in the revolution. Latest reports reveal that protesters were attempting to storm the Ministry of the Interior [official website] and were deterred by police firing rubber bullets.

Many fear the recent protests will impede upcoming elections. The November 28 election is considered the first free election following the overthrow [JURIST report] of Mubarak in February. Earlier this week, the Egypt Supreme Administrative Court suspended a verdict [JURIST report] handed down last week by the Mansoura Administrative Court that prohibited former officials of the National Democratic Party (NDP) to participate in the upcoming election. As a result, most of the officials who joined other parties or plan to run independently are now allowed to continue their campaigns for the election. This month, Egypt stated that it will amend its constitution [JURIST report] based on a court ruling from a week before in order to allow citizens living abroad to vote in the parliamentary election. In addition, the SCAF announced that it will create a law that will ban [JURIST report] anyone found guilty of corruption from the election process. Mubarak himself is faced with charges of complicity in the deaths of more than 800 protesters [JURIST report] during the pro-democracy demonstrations in Egypt [JURIST news archive]. His trial was adjourned [JURIST report] last month and will not resume until December 28. Also last month, an Egyptian court overturned [JURIST report] a ban prohibiting formation of religious-based political parties. Some restrictions, however, still exist in the election process such as prohibition of using religious slogans [JURIST report] during campaigns.




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Philippines ex-president charged with corruption, election fraud
Dan Taglioli on November 19, 2011 12:41 PM ET

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[JURIST] Philippine authorities formally charged former president Gloria Macapagal Arroyo [BBC profile; JURIST news archive] with electoral sabotage Saturday, a day after she was arrested on a warrant [text] issued for charges of corruption and election fraud that occurred during her time as president. The Philippine Commission on Elections [official website] approved fraud charges against Arroyo Friday and she was arrested in her hospital room [JURIST report], in which she was being treated for a bone ailment and remains under police guard. Arroyo was previously unable to seek medical care outside of the Philippines because of travel restrictions in connection with her charges, but earlier this week the Philippine Supreme Court [official website] issued a temporary restraining order [JURIST report] allowing her to leave the country despite the accusations. The court ruled 8-5 against the government-imposed travel restrictions that started in August. Arroyo argued that she needs to travel abroad for medical treatment unavailable in the Philippines, while government officials argued that local treatment is available and her travel is really an attempt to flee the country. After the decision was upheld Friday, the government issued the warrant for her arrest which overrode the court's decision allowing her to travel. Arroyo continues to deny wrongdoing [AP report] and alleges that the charges reflect political persecution by the government.

On Tuesday Arroyo and her husband attempted to leave the country after posting bond, but the government refused to allow them transit until they received an official copy of the court order. A spokesperson for the government stated it would appeal the ruling. Oral arguments were set for November 22. Arroyo was president of the Philippines from 2001-2010. She left office after the Philippine Department of Justice (PDOJ) [official website] brought allegations of corruption. Arroyo was elected to the House of Representatives last year after the Philippine Supreme Court ruled her eligible to run [JURIST report], despite protests that she had an unfair advantage. In July 2010, current President Benigno Aquino [BBC profile] signed an executive order [JURIST report] to set up a "truth commission" to investigate allegations that the outgoing administration engaged in corruption and rights violations.




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Gaddafi son captured by Libya rebel forces
Dan Taglioli on November 19, 2011 12:15 PM ET

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[JURIST] Saif al-Islam Gaddafi was captured in southern Libya [JURIST backgrounder] Friday, officials of the country's interim government have announced. A fugitive since his father's regime fell last month [JURIST report], the highest-profile son of deceased former dictator Muammar Gaddafi [BBC obituary; JURIST news archive] was arrested without a fight [Guardian report] in the desert near the southern city of Sabha. Saif al-Islam was captured overnight with several armed companions, reportedly in an attempt to escape to neighboring Niger. Libyan state television has reported that Saif al-Islam arrived uninjured at an army base in the town of Zintan, 90 miles southwest of Tripoli, after being captured by Zintan fighters, part of one of the powerful Libyan militias that are friendly to the country's National Transitional Council (NTC) [website]. Saif al-Islam is wanted [JURIST report] by the International Criminal Court (ICC) [official website] for crimes against humanity [warrant, PDF], but many in Libya want him tried locally, and the NTC previously insisted it will try any war criminals in Libya and not extradite them to The Hague. The militia fighters have stated that it is up to the NTC to decide where Saif al-Islam will be tried, but that until the new Libyan government is formed they will hold Saif al-Islam at Zintan, a base for militia forces in the Nafusa Mountains, which played a key part in the storming of Tripoli in the summer. Interim prime minister Abdel-Rahim al-Keeb is due to announce the new government this week.

ICC Chief Prosecutor Luis Moreno-Ocampo [official profile] said Saturday that he will go to Libya in the next week [Reuters report] to discuss Saif al-Islam's fate. Earlier this month Ottilia Maunganidze [profile], a researcher at the Institute for Security Studies [website], wrote that the NTC must meet its international obligations [JURIST op-ed] and ensure justice for human rights violations by surrendering Saif al-Islam to the ICC. Edsel Tupaz of Tupaz & Associates and Daniel Wagner [profiles] of Country Risk Solutions wrote this month that while Libya needs a "strategically targeted court system" with a specialized war crimes court [JURIST op-ed] at its core, currently there is no avoiding "the fact that there are no domestic judicial mechanisms [in Libya] ... to enforce the voice of the ICC." Ocampo last month stated that he has evidence against Saif al-Islam [JURIST report] for his role in planning attacks on Libyan civilians. According to Ocampo there is "substantial evidence" that Saif al-Islam hired mercenaries to assist him in carrying out plans to attack demonstrators that protested the rule of his father. Libyan rebel leaders allegedly captured Saif al-Islam [JURIST report] in August, but he was free by September.




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UN rights expert urges WTO to make right to food a priority
Rebecca DiLeonardo on November 18, 2011 2:04 PM ET

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[JURIST] UN Special Rapporteur on the Right to Food Olivier De Schutter [official website] said Friday that the World Trade Organization (WTO) [official website] must make food security a top priority [UN News Centre report; report, PDF] at its global trade talks next month. De Schutter stressed that WTO policies do not adequately ensure the right to food in developing countries, especially as international food prices are on the rise. He expressed concern that existing WTO trade regulations leave developing countries vulnerable drastic price increases which can lead to food shortages. The rapporteur recommended that the WTO review and make appropriate changes to its polices to allow developing countries greater food security:
WTO members should redefine how food security is treated in multilateral trade agreements so that policies to achieve food security and the realization of the human right to adequate food are no longer treated as a derivations from but as recognized principal objectives of agricultural trade policy. Food security is presently treated under the WTO as the grounds for exceptions for a very limited range of trade liberalization commitments...Members should preserve and create a range of flexibilities in the Doha Round Negotiations in order to ensure that the future international trade regime operates in lock step with multilateral and national efforts to address food insecurity.
De Schutter's comments are in anticipation of the Eighth WTO Ministerial Conference [materials] to be held December 15–17 in Geneva, Switzerland. As of earlier this month, the provisional agenda [document] for the conference does not list specific topics of discussion.

Last month, De Schutter voiced his support for a reformation of the Mexican constitution [JURIST report] which will recognize the right to food. In 2010, De Schutter urged governments to institute legal reform to help fight hunger [JURIST report] and promote the right to food. UN Secretary-General Ban Ki-moon [official website] in 2007 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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Prosecutors appeal decision to release Khmer Rouge leader
Michael Haggerson on November 18, 2011 1:42 PM ET

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[JURIST] Prosecutors in the UN-backed Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website; JURIST news archive] filed an immediate appeal [text, PDF] on Friday of the court's decision to release [JURIST report] Khmer Rouge leader Ieng Thirith [ECCC profile, PDF] after finding her unfit to stand trial. The judges found, based on the opinions of a geriatrician and four psychiatrists [JURIST report], that Ieng's incapacity to remember her own husband's name, let alone her alleged contribution to the death of up to two million people, would not serve the interests of justice. The prosecutors argue that the decision to release Ieng should be delayed for six months and she should be held in detention during that time and undergo medical treatment for her condition. The prosecutors also argue that the court had no legal basis for its decision to immediately release Ieng and that international jurisprudence dictates that when international criminal proceedings are adjourned due to unfitness of the defendant to stand trial, the norm is for that individual to remain in custody or be released subject to restrictive conditions when there is a even a remote possibility that the individual could regain their mental faculties. The prosecutors point out that the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] did not terminate proceedings against Talic [ICTY case information, PDF; materials] or Djukic [ICTY case information, PDF; materials] until their deaths even though they were afflicted with incurable terminal illnesses. The prosecutors further argue that the International Criminal Court Rules of Procedure and Evidence [text, PDF] mandate that judgments that an individual is unfit to stand trial be reviewed within 120 days unless there are "reasons to do otherwise" and there is no precedent for the individual to be released during this period.

The trial of the other three surviving leaders is set to begin [JURIST report] 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. In September, the ECCC ordered the trials 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 [press release] in the case [materials] against the elderly defendants. The first trial will focus on the beginning two phases of population movement and allegations of crimes against humanity, including murder, persecution not on religious grounds and forced disappearances associated with the first phases of population movement. Subsequent trials will focus on the third phase of population movement, genocide, persecution based on religious grounds and violation of the Geneva Conventions of 1949 [ICRC backgrounder].




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Sri Lanka ex-army chief sentenced to 3 more years for implicating official in war crimes
Brandon Gatto on November 18, 2011 11:24 AM ET

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[JURIST] A jailed former Sri Lanka army chief was sentenced on Friday to an additional three years in prison for reportedly implicating his country's defense secretary in war crimes at the end of the 26-year Sri Lankan civil war [CFR backgrounder]. In the High Court [official website] ruling, two out of three judges found that the comments made to a newspaper by former officer Sarath Fonseka [BBC profile] had breached Sri Lanka's emergency laws that were put in place during the war. According to prosecutors, Fonseka told the Sunday Leader [media website] newspaper on December 13, 2009, that he was informed that secretary Gotabhaya Rajapaska, the brother of Sri Lankan President Mahinda Rajapaska [BBC profile], ordered not to accommodate surrendering soldiers. Fonseka, however, has long contended that he was misquoted [AFP report], and that such drastic penalties against the freedoms of speech will leave a black mark on the history of the Sri Lankan judiciary.

By the end of the 26-year civil war in 2009, Fonseka had successfully led the Sri Lankan army to victory over the separatist Tamil Tiger rebels, and both he and Mahinda Rajapaksa became popular in the country's political scene. However, shortly after his political defeat in the January 2010 presidential election, Fonseka was arrested and found guilty in August 2010 for engaging in politics while still on active duty [JURIST report]. Even before his hearings first began [JURIST report] in July 2010, Fonseka has maintained throughout the ordeal that his treatment is against the rule of law, and that vast democratic improvements [JURIST report] are a necessity within the Sri Lankan government.




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Ninth Circuit refuses to block release of names on Washington domestic partnership petition
Jaimie Cremeans on November 18, 2011 10:40 AM ET

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[JURIST] The US Court of Appeals for the Ninth Circuit [official website] on Wednesday denied a request [opinion, PDF] to block the release of names on Washington state petitions for Referendum 71 (R-71) opposing domestic partnerships. Last month, the Washington secretary of state began to release the names [JURIST report] after a federal judge lifted an injunction against their release. The release was halted [Seattle Times report] days later when an emergency motion was filed by a group concerned about backlash against signers of the petitions. On Wednesday, the appeals court decided the appeal was "moot due to the (previous) release of R-71 petitions and district court's order identifying the Doe plaintiffs" and that there is question of whether the plaintiff-appellants have "standing to bring this appeal on behalf of R-71 petition signers." Protect Marriage Washington [advocacy website], the group bringing the suit, has filed a notice of appeal with the court.

In 2009 the Supreme Court issued a temporary injunction against release of the names, but in 2010 it decided [JURIST reports] release of the names was not a violation of the First Amendment. Referendum 71 [summary] was passed in 2009 by Washington voters, affirming approval of Senate Bill 5688 [text], to give domestic partnerships the same legal rights as married couples. It was put on the ballot by Protect Marriage Washington in a failed attempt to vote down Senate Bill 5688. Many opposing groups filed for release [AG website] of the names on the petitions, causing Protect Marriage Washington to file the ensuing lawsuits to protect signers' identities.




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Philippines ex-president arrested on fraud, corruption charges
Matthew Pomy on November 18, 2011 9:49 AM ET

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[JURIST] Philippine authorities arrested former president Gloria Macapagal Arroyo [BBC profile; JURIST news archive] on Friday in response to a warrant [text] issued that same day on charges of corruption and election fraud occurring during her time as president. Arroyo was arrested in her hospital room [AP report] where she was being treated for a bone ailment. She was previously unable to seek medical care outside of the Philippines because of travel restrictions in connection with her charges. However, earlier this week the Philippine Supreme Court [official website] issued [JURIST report] a temporary restraining order [text, PDF] allowing her to leave the country despite the accusations. The court ruled 8-5 against government-imposed travel restrictions that started in August. Arroyo argued that she needs to travel abroad for medical treatment, unavailable in the Philippines while government officials argued treatment is available in the Philippines and are concerned this is an attempt to flee the country. After that decision was upheld Friday, the government issued the warrant for her arrest which overrode the court's decision allowing her to travel. Arroyo continues to deny wrongdoing [AP report] and alleges that the charges reflect political persecution by the government.

On Tuesday, Arroyo and her husband attempted to leave the country after posting bond, but the government refused to allow them transit until they received an official copy of the court order. A spokesperson for the government stated it would appeal the ruling. Oral arguments were set for November 22. Arroyo was president of the Philippines from 2001-2010. She left office after the Philippine Department of Justice (PDOJ) [official website] brought allegations of corruption. Arroyo was elected to the House of Representatives last year after the Philippine Supreme Court ruled her eligible to run [JURIST report], despite protests that she had an unfair advantage. In July 2010, current President Benigno Aquino [BBC profile] signed an executive order [JURIST report] to set up a "truth commission" to investigate allegations that the outgoing administration engaged in corruption and rights violations.




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Russia lawmakers approve bill banning 'promotion' of homosexuality
Hillary Stemple on November 18, 2011 9:31 AM ET

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[JURIST] Russian lawmakers in the city of St. Petersburg on Wednesday overwhelmingly approved an initial reading of a bill that would impose fines against people convicted of promoting homosexuality, including gays or lesbians who are open about their sexuality. The legislation, which was supported by the ruling United Russia party [AFP report], would ban gay pride parades, and any activity in public which could influence children and that could be viewed as promoting a gay, lesbian, transgender or LGBT lifestyle. Individuals convicted under the law would be subject to fines between 3,000 and 5,000 rubles ($100-$160 USD) [Moscow Times report], while organizations could be fined up to 50,000 rubles for "promoting" homosexuality. Sponsors of the bill claim it is necessary because homosexual propaganda "threatens" Russia [RIA Novosti report] and that "sexual deviation" negatively impacts Russian children. Valentina Matviyenko, speaker of the upper house of the Russian Parliament [official website, in Russian] and former governor of St. Petersburg, noted his support for the measure and indicated that a similar national ban should be considered. Russian gay rights supporters condemned the bill as an attempt to politicize the issue and bolster political support for the United Russia party in St. Petersburg among the uneducated population. They condemned the bill as being unprofessional, due to the presence of numerous spelling errors, and excessively regressive. According to legal scholars, the Russian Constitution [text] may allow limitations to be placed on the rights of homosexuals due to the constitutional ability to balance the interests of society and limit rights of a social group if they infringe upon the rights of another social group. Before it can be enacted, the legislation must survive two more readings, although approval of the bill is ultimately expected.

Russia has long struggled with the acceptance of homosexuality. In 2008, several Russian gay rights activists were arrested [JURIST report] by police in Moscow for holding events commemorating the 1993 law that put an end to government prosecution for homosexual activity in Russia. It was the third consecutive year Moscow Pride held events around the city to elude officials attempting to enforce a local ban on gay pride parades [JURIST report] that was put in place due to fears of violence. The UN has attempted to pass resolutions aimed at ending sexuality discrimination worldwide, but has faced difficulty passing resolutions on gay rights issues, due to no international consensus on the morality of homosexuality. In June, UN Human Rights Council (UNHRC) [official website] passed the "Human rights, sexual orientation and gender identity" resolution [text, PDF], which is the first resolution to call for an end to sexuality discrimination worldwide [JURIST report] and to recognize it as a "priority" for the UN. Last year, UN Secretary General Ban Ki-moon [official website] called for countries around the world to abolish laws discriminating against gay and lesbian individuals [JURIST report]. Two years ago, the UN passed a gay rights declaration [text, PDF], which the US signed and sponsored [JURIST report]. The declaration, a nonbinding measure that does not have the full force of a resolution, called on states to end criminalization and persecution of homosexuals. This declaration was recalled by the new resolution. Although 85 countries signed the declaration [US Ambassador statement], 57 countries, primarily in Africa and the Middle East, signed an opposing statement. The year before, the UN General Assembly [official website] was divided over the issue of decriminalizing homosexuality [JURIST report] as 66 nations signed a statement calling for decriminalization, and nearly 60 nations signed an opposing statement.




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White House threatens veto of defense spending bill over detainee provisions
Hillary Stemple on November 18, 2011 8:58 AM ET

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[JURIST] The White House released a statement of administration policy [text, PDF] on Thursday praising the work of the Senate Armed Services Committee (SASC) [official website] on the National Defense Authorization Act for 2012 [SB 1867, PDF] but warning that President Barack Obama [official website] could veto the bill if it "challenges or constrains the President's critical authorities to collect intelligence, incapacitate dangerous terrorists, [or] protect the Nation." The White House expressed serious concerns about provisions in the bill governing detainees, which would allow the military to have complete custody and control over terror suspects and grant authority to Attorney General Eric Holder [official website] over whether suspects should be tried in military or civilian courts. The provisions were approved on Wednesday [JURIST report] by the SASC in an unanimous vote after disagreements regarding the provisions had blocked their passage for months [CNN report]. In the statement the White House noted that the Obama administration has "serious legal and policy concerns" about the proposed changes to detainee policies, stating that the provisions would "disrupt the Executive branch's ability to enforce the law and impose unwise and unwarranted restrictions on the U.S. Government's ability to aggressively combat international terrorism." The White House also warned that a section of the bill that would apply military custody requirements to certain individuals in the US "would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets." According to the Obama administration, the detainee provisions of the bill would "rebuild the walls" between intelligence, military and law enforcement professionals making it more difficult to prevent terrorist attacks. The White House also noted the administration's willingness to work with Congress to address the concerns expressed in the statement.

The Armed Services Committee's decision, which still must survive a vote in the full Senate comes on the heels of an American Civil Liberties Union (ACLU) [advocacy website] report [text, PDF] claiming that the US is diminishing its "core values" [JURIST report] with regard to various counterterrorism measures put in place during the 10 years since the 9/11 attacks [JURIST backgrounder]. To support this contention, the report cites to US policies regarding indefinite military detention for terrorism suspects, the use of torture on terrorism suspects and enemy combatants, racial and religious profiling, and domestic surveillance and wiretapping. The report posits that these policies run deeper than what is known by the American people, civil liberties continue to be violated in secret and that future violations are imminent. The ACLU acknowledged that the government has sought to cease certain questionable practices, citing President Barack Obama's directive to close the Guantanamo Bay military prison [JURIST news report], but stated that other questionable practices remain "core elements of [US] national security strategy today."




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California high court rules Proposition 8 sponsors may defend it in court
Michael Haggerson on November 17, 2011 3:20 PM ET

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[JURIST] The California Supreme Court [official website] ruled [opinion, PDF; Perry v. Brown materials] Thursday that sponsors of Proposition 8 [text; JURIST news archive] and other ballot initiatives can defend them in court when the state refuses to do so. When the same-sex marriage ban was initially struck down last year [JURIST report] by the US District Court for the Northern District of California [official website], then-governor Arnold Schwarzenegger and former attorney general and current Governor Jerry Brown [official website], who were originally defendants in the lawsuit, refused to continue defending the measure on appeal [JURIST report]. This left defendant-intervenors Project Marriage [advocacy website] and other groups to defend the law. The US Court of Appeals for the Ninth Circuit [official website] sought guidance [JURIST report] from the California Supreme Court on whether the defendants have standing to defend the proposition when the state itself refused to do so. The California Supreme Court answered in the affirmative:
The judicial system is designed to operate through public proceedings in which adversaries litigate factual and legal issues thoroughly and vigorously. When an initiative measure is challenged in court, the integrity and effectiveness of the judicial process require that a competent and spirited defense be presented. If public officials refuse to provide that defense, the ability of the initiative proponents to intervene in the pending litigation, and to appeal an adverse judgment, is inherent in, and essential to the effective exercise of, the constitutional initiative power. To hold otherwise not only would undermine that constitutional power, it also would allow state executive branch officials to effectively annul voter-approved initiatives simply by declining to defend them, thereby permitting those officials to exceed their proper role in our state government‘s constitutional structure.
Although seemingly a setback for same-sex marriage supporters since the ruling gives same-sex marriage opponents the opportunity to argue against the district court's ruling that Proposition 8 is unconstitutional, the American Foundation for Equal Rights [advocacy website] stated that it was actually a victory because they are confident that the Ninth Circuit will uphold [press release] the district court's ruling and a victory in the largest appeals court in the country will set a huge precedent.

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




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ICTY issues arrest warrant for former spokesperson
Dan Taglioli on November 17, 2011 12:58 PM ET

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[JURIST] The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] Wednesday issued an arrest warrant [order, PDF; press release] for former spokesperson Florence Hartmann [BBC profile; ICTY materials, PDF] for nonpayment of a €7,000 fine imposed for a contempt of court conviction. A five-judge appeals panel reordered the fine imposed on Hartmann, a French national, and then converted the fine into a seven-day prison sentence [UN News Centre report]. The court then "directed and authorized" France to search for, arrest and detain Hartmann and surrender her to the tribunal, which is based in The Hague in the Netherlands. Hartmann's conviction was upheld on appeal [JURIST report] in July of this year, after which the court ordered her to pay her fine in two installments of €3,500 each by mid-August and mid-September, respectively. Hartmann subsequently wrote to the tribunal saying she is indigent and unable to pay her fine. She claimed that her supporters had deposited the funds to pay the fine in a French bank account, but the tribunal's finance department stated it had yet to receive either installment and, deeming the fine to have not been paid, the appeals chamber decided to convert the fine into a prison term. Hartmann formerly served as the official spokesperson for chief ICTY prosecutor Carla del Ponte [BBC profile].

In 2009 a specially appointed chamber convicted Hartmann of two counts of contempt JURIST report] for allegedly disclosing protected information of appellate chamber decisions from the trial of former Serbian president Slobodan Milosevic [JURIST news archive] in a book and an article she wrote in 2007 and 2008. The original trial began in June 2009, Hartmann having been formally charged [JURIST reports] the previous August. At an initial appearance, Hartmann did not enter a plea [JURIST report] and a plea of not guilty was entered on her behalf. Before being indicted, Hartmann drew media attention by repeating allegations [JURIST report] that former US president Bill Clinton and former French president Jacques Chirac had planned a campaign [JURIST report] to capture Radovan Karadzic [BBC profile; JURIST news archive] but later backed down following a change in policy. Hartmann has also said that Russia aided in moving Karadzic to safety in Belarus, and alleged that the West helped in order to hide information about the Srebrenica massacre [BBC backgrounder; JURIST news archive].




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UN humanitarian chief emphasizes need to protect civilians in conflict zones
Katherine Getty on November 17, 2011 12:31 PM ET

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[JURIST] The UN Under-Secretary for Humanitarian Affairs [official website] stressed Thursday that parties in conflict have a duty to protect non-combatants [UN News Centre report] under international law. Valerie Amos [official profile] highlighted conflicts in Somalia, Sudan and Yemen [BBC backgrounders] as examples of countries where civilians are being targeted. In Somalia, Somalis and Kenyans are engaged in battle to push out the al-Shabaab rebels after they invaded South Somalia in mid-October. Amos said that the conflict would lead to internal displacement as civilians begin planting their crops. Sudan is waging a civil war of its own, in its battle with South Sudan [BBC backgrounder], which gained independence [JURIST report] in early July. Amos highlighted the need to protect the millions of people who cross the border between the two countries, as they muddle through post-secession issues. For the last 10 months the Yemeni people have been trying to oust President Ali Abdullah Saleh [official website]. The deadly clashes between rebels and governmental forces have left many dead and cut off civilian access to necessary public services, including health care, according to Amos. She also mentioned the excessive use of force by Syrian authorities to quell the popular uprising, which has left more than 3,500 people dead [JURIST report], as an example of the violation of international law. Amos cited the escalation of violence as detrimental to the work of humanitarian organizations. Such organizations cannot place their people in potentially harmful situations, and the lack of personnel has led to a lack of humanitarian aid.

The UN is not the only human rights group to advocate for better conditions for civilians in conflict. In July, Amnesty International [advocacy website] issued a report [text, PDF] highlighting the deterioration of human rights conditions [JURIST report] in armed conflict zones, especially for children. The UN Security Council [official website] has called for Yemen to put an end to violence [JURIST report] against peaceful protesters and urged the country to comply with international law in regards to civilians. In August, Amnesty International and Human Rights Watch [advocacy website] both claimed to have evidence that the Sudanese army committed war crimes [JURIST report] in the South Kordofan region of the country. In July the UN Security Council called for an end to the fighting [JURIST report] in the region. Amos denounced the human rights abuses [statement] in the region in June.




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Rwanda genocide tribunal convicts former mayor
Matthew Pomy on November 17, 2011 12:28 PM ET

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[JURIST] The International Criminal Tribunal for Rwanda (ICTR) [official website] convicted [judgment summary, PDF] former Rwandan mayor Gregoire Ndahimana [HJP profile] of genocide and crimes against humanity on Thursday and sentenced him to 15 years in prison. Ndahimana was charged in connection with the 1994 Rwandan Genocide [BBC backgrounder]. He was convicted [Reuters report] of the killings at Nyange parish between April 6 and April 20, 1994, by virtue of his "command responsibility." An indictment [text, PDF] against Ndahimana was issued in April 2001 for his participation in the bulldozing of the Nyange parish killing the 2,000 Tutsis hiding inside. Ndahimana was found hiding in the Democratic Republic of Congo in 2009 and was sent to the ICTR for trial [case materials], which began [JURIST report] in September 2010.

The ICTR continues to try suspects for crimes occurring during the 1994 Rwandan conflict between Hutus and Tutsis in which approximately 800,000 people were killed. In September, the court acquitted [JURIST report] two former Rwandan ministers, Casimir Bizimungu and Jerome Bicamumpaka, of genocide charges due to a lack of sufficient evidence. In June, the court convicted [JURIST report] former Rwandan army chief Augustin Bizimungu and three others. Bizimungu was sentenced to 30 years in prison while two others, Francois-Xavier Nzuwonemeye and Innocent Sagahutu, to 20 years in prison and Augustin Ndindiliyimana to time served since his arrest in 2000. Last December, the ICTR sentenced [JURIST report] former Rwandan Armed Forces lieutenant Ildephonse Hategekimana to life imprisonment after convicting him on charges of genocide and crimes against humanity. The court found Hategekimana guilty of three counts of genocide stemming from his involvement in the 1994 Rwandan genocide, specifically in the massacre of civilian Tutsis in the Rwandan town of Butare.




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BP reparations lawsuit remanded to Mississippi state court
Dan Taglioli on November 17, 2011 12:10 PM ET

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[JURIST] A judge for the US District Court for the Southern District of Mississippi [official website] Tuesday remanded to state court [order, PDF] the Mississippi attorney general's lawsuit against the administrator of the British Petroleum (BP) [corporate website] $20 billion Deepwater Horizon oil spill [BBC backgrounder; JURIST news archive] reparations fund, the Gulf Coast Claims Facility (GCCF) [official website]. Seeking to enforce an earlier subpoena for access to reparations claims filed by coastal residents, Attorney General Jim Hood [official website] filed the lawsuit in Hinds County Chancery Court in July, claiming to be "conducting an investigation into whether [GCCF's] procedures for processing claims constitute fair and/or deceptive trade practices in violation of the Mississippi Consumer Protection Act (MCPA)." The fund's administrator, Washington lawyer Kenneth Feinberg [WP profile], had the case removed to federal court, claiming that original jurisdiction lay with that court by virtue of the Outer Continental Shelf Lands Act (OCSLA) [Cornell LII materials]. District Judge Carlton Reeves concluded that, firstly, Hood's petition does not amount to a "civil action" as the term is used in the federal removal statute, and therefore GCCF was not entitled to remove the case to federal court, and, secondly, that the operation of "developing and publishing standards for recoverable claims" from the Deepwater Horizon spill did not constitute an "operation conducted on the outer Continental Shelf" as required by OCSLA and so OCSLA cannot apply as a proper basis for federal jurisdiction. Reeves addressed only the issue of jurisdiction, and the original question of whether the subpoena at the core of Hood's petition is lawful under the MCPA is "another question altogether" to be decided in state court.

Calls for criminal and civil actions have been mounting against BP, as evidence of the oil giant's lack of proper compliance with regulations has come to light. In July the US District Court for the Eastern District of Louisiana [official website] dismissed consolidated racketeering claims against BP [JURIST report] in connection with the spill brought under the US Racketeer Influenced Corrupt Organizations (RICO) [text] act. In February, Hood asked the district court to order the GCCF to fulfill its legal obligations to aid victims of the spill and to remedy inadequate claims mechanisms [JURIST report]. The GCCF began processing claims in August 2010 following the completion of negotiations [JURIST reports] between BP and the US Department of Justice (DOJ) [official website]. Former Alabama Attorney General Troy King filed a lawsuit [JURIST report] in August of last year against BP for damages to the state's coast and economy, claiming that the oil giant has failed in its efforts to accept responsibility for the oil spill. In July 2010 a class action lawsuit [JURIST report] was filed against the company in a Louisiana state court alleging that its negligent actions led to the spill and that BP was further negligent in its oversight of the cleanup effort, resulting in volunteers falling ill due to inadequate protective equipment. One month prior, US Attorney General Eric Holder [official website] announced that the DOJ would review whether any criminal or civil laws were violated [JURIST report] by BP.




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Khmer Rouge leader declared unfit to stand trial
Alexandra Malatesta on November 17, 2011 12:01 PM ET

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[JURIST] The UN-backed Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website; JURIST news archive] on Thursday decided [text, PDF; materials] that Ieng Thirith [ECCC profile, PDF] is unfit to stand trial—just days before the war crimes trial [press release] of the surviving Khmer Rouge [BBC backgrounder; JURIST news archive] leaders is set to start. Ieng, the former minister of social affairs and the only female leader to be charged, had been charged with genocide but will be released as soon as possible [AFP report] because of her recent diagnosis of dementia caused by the 79-year-old's Alzheimer's disease. The judges found, based on the opinions of a geriatrician and four psychiatrists [JURIST report], that Ieng's incapacity to remember her own husband's name, let alone her alleged contribution to the death of up to two million people, would not serve the interests of justice:
While acknowledging the possibility that Ieng Thirith could attempt to feign the cognitive impairment in view of the consequences of a finding of incapacity, all experts considered it unlikely that Ieng Thirith could falsely present with dementia. ... [Ieng's] long-term and short-term memory are limited and ... her condition will continue to deteriorate over time. ... The Psychiatric Experts ... considered that she possessed some understanding that she was accused and of what she was accused ... [and] retained some capacity to enter a plea, to understand the charges and details of the evidence against her, and to testify. ... However, the Accused's impaired memory will likely impact upon her ability to recall events that occurred between 1975 and 1979. ... [Ieng's inability to] adequately instruct counsel and effectively participate in her own defense ... [restricts the] exercise these fundamental fair trial rights meaningfully, and in accordance with the international standards ... the Chamber has no alternative but to declare her unfit.
Prosecutors have 24 hours to appeal this decision. All four leaders have pleaded not guilty to charges including crimes against humanity, war crimes, genocide, religious persecution, homicide and torture.

The trial of the other three surviving leaders is set to begin [JURIST report] 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. In September, the ECCC ordered the trials 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 [press release] in the case [materials] against the elderly defendants. The first trial will focus on the beginning two phases of population movement and allegations of crimes against humanity, including murder, persecution not on religious grounds and forced disappearances associated with the first phases of population movement. Subsequent trials will focus on the third phase of population movement, genocide, persecution based on religious grounds and violation of the Geneva Conventions of 1949 [ICRC backgrounder].




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Senate committee votes to grant military complete control over al Qaeda suspects
Alexandra Malatesta on November 17, 2011 11:15 AM ET

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[JURIST] The Senate Armed Services Committee [official website] on Wednesday finally agreed on a controversial detainee provision of the National Defense Authorization Act for 2012 [SB 1867, PDF] that governs the handling and prosecuting of suspected al Qaeda [GlobalSecurity backgrounder] detainees. The provision, which was approved by a 26-0 vote [roll call, PDF], allows the military to have complete custody and control over terror suspects and grants authority to Attorney General Eric Holder [official website] over whether suspects should be tried in military or civilian courts. Disagreements regarding the provision have blocked its passage for months [CNN report], but were finally resolved by top Democrat and Committee Chairman Senator Carl Levin and ranking Republican Senator John McCain [official websites]. The provision was passed despite the protests of the White House [Washington Times report], which refused to sign off on the agreement because of the belief that the FBI should have unrestricted access and interrogation rights over domestically detained al Qaeda suspects, rather than the military.

The Armed Services Committee's decision, which still must survive the Senate floor and the veto power of President Barack Obama, comes on the heels of an American Civil Liberties Union (ACLU) [advocacy website] report [text, PDF] claiming that the US is diminishing its "core values" [JURIST report] with regard to various counterterrorism measures put in place during the 10 years since the 9/11 attacks [JURIST backgrounder]. To support this contention, the report cites to US policies regarding indefinite military detention for terrorism suspects, the use of torture on terrorism suspects and enemy combatants, racial and religious profiling, and domestic surveillance and wiretapping. The report posits that these policies run deeper than what is known by the American people, civil liberties continue to be violated in secret and that future violations are imminent. The ACLU acknowledged that the government has sought to cease certain questionable practices, citing President Barack Obama's directive to close the Guantanamo Bay military prison [JURIST news report], but stated that other questionable practices remain "core elements of [US] national security strategy today."




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Massachusetts passes transgender anti-discrimination bill
Jamie Reese on November 16, 2011 1:47 PM ET

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[JURIST] The Massachusetts legislature [official website] passed a bill [H3810 text] Tuesday night that will protect transgender people in housing, credit and the workplace, as well as including them under hate crime protections. The bill passed the House by a vote of 115-37 and the Senate by a vote of 95-56 and was sent to be signed by Governor Deval Patrick [official website]. The bill includes gender identity under the state's non-discrimination statutes, except public accommodations, and amends existing laws to protect people targeted for violence and harassment. The bill adds the following definition to the General Laws of Massachusetts:
"Gender identity" shall mean a person's gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person's physiology or assigned sex at birth. Gender-related identity may be shown by providing evidence including, but not limited to, medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity or any other evidence that the gender-related identity is sincerely held, as part of a person's core identity; provided however, gender-related identity shall not be asserted for improper purpose.
Opponents claim the bill is an invitation to lawsuits and a threat to small business, and the legislature should be focusing on the economy and job creation. Proponents deem the passage necessary to ensure the rights of transgender people and reduce the significant threats they face. Upon governor signature, Massachusetts will become the sixteenth state to pass similar legislation protecting the class of transgender people.

Protections for lesbian, gay, bisexual and transgender (LGBT) individuals remains a diverse political issue. In June of this year, Connecticut passed similar legislation [JURIST report] defining "gender identity or expression" and providing protection in the state's existing anti-discrimination laws. Other national action includes measures to stop hate crimes against LGBT individuals. In March, US Representative Jared Polis (D-CO) and Senator Al Franken (D-MN) [official websites] introduced legislation to protect LGBT students from bullying [JURIST report] in federally funded public elementary and high schools. In 2009, US President Barack Obama signed into law [JURIST report] a bill that contained a measure extending the definition of federal hate crimes to include crimes motivated by gender, sexual orientation, gender identity or disability. Internationally, homosexuality remains a criminal offense in more than 70 countries around the world, and statistics show that anti-LGBT crimes are on the rise worldwide and in the US [JURIST reports]. These crimes, in addition to the absence of state protection against employment discrimination, have been estimated to cost US states millions of dollars annually [JURIST op-ed].




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Rights groups claim voter fraud in Equatorial Guinea referendum
Katherine Getty on November 16, 2011 12:23 PM ET

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[JURIST] Human Rights Watch (HRW) and EG Justice [advocacy websites] claimed Tuesday that Equatorial Guinea's recent referendum on constitutional reforms was rife with voter fraud [EG report; HRW report]. The referendum [JURIST report], which was approved with near-unanimous support, removed the age limit for presidents and created a vice president position, apparently allowing current President Teodoro Obiang Nguema to name his son as his successor. HRW and EG Justice released a declaration following the referendum condemning it as a political tool [joint statement] that would strengthen Obiang's power and prevent democracy. EG Justice has raised issues with the way the election was conducted. They claim that voters were subjected to intimidation tactics and allowed to cast votes for family members who were not present. The sources came from opposition party members observing the voting and voters who described conditions at polling places. EG Justice found that in some polling locations there were no ballot cards for a "no," only ballots with "yes." The African director of HRW claimed that, the government "failed to provide an inclusive, transparent, and accountable voting process [and] the result of the referendum and the government's commitment to true democratic reforms both lack credibility." The government has refused to comment.

This is not the first issue human rights groups have had concerns over democracy in Equatorial Guinea. Amnesty International (AI) [advocacy website] condemned [press release] the government for the execution of four men convicted [JURIST report] of an attempted assassination on Obiang in 2009. AI received reports that claimed the men were tortured while in prison and forced to confess to the crimes. One of the convicted men requested to see his family, but by the time they arrived at the prison he had already been executed. Obiang defended [JURIST report] the decision, stating that no laws were broken and all necessary legal procedures were followed.




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ACLU appeals dismissal of same-sex couples' benefits to Montana high court
Max Slater on November 16, 2011 12:21 PM ET

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[JURIST] The American Civil Liberties Union (ACLU) [advocacy website] on Monday filed a brief [text, PDF] in its appeal [JURIST report] to the Montana Supreme Court [official website] arguing that denying partnership benefits to same-sex couples violates the Montana state constitution [text, PDF]. The ACLU opined that a district judge's April dismissal [JURIST report] of a lawsuit by six same-sex couples in Donaldson and Guggenheim v. State of Montana [ACLU backgrounder] was a breach of separation of powers [press release], saying that courts have a duty to interpret whether or not actions by the legislature or the executive branch are unconstitutional. The same-sex couples in this case are not seeking the right to wed, but rather that they want to be able to make decisions like married couples about their families' health care, finances, inheritance and burials. In its brief, the ACLU argued, "[t]he State's exclusion of same-sex couples from state statutory benefits and obligations solely due to the fact that they are in committed, intimate same-sex relationships infringes Plaintiffs' constitutional rights of privacy, dignity, and the pursuit of safety, health and happiness." Montana Attorney General Steve Bullock [official profile] is expected to file a response by December 14.

Many states continue to debate issues pertaining to same-sex marriage [JURIST news archives]. Last week, a New Jersey court ruled [JURIST report] that a marriage equality lawsuit, which seeks to overturn New Jersey's civil unions law on equal protection grounds, could proceed. In October, the Servicemembers Legal Defense Network [advocacy website] filed suit [JURIST report] in federal court arguing that the Defense of Marriage Act (DOMA) [text; JURIST news archives] unconstitutionally denies gay couples equal protection under the law. Despite DOMA, same-sex marriage is currently legal in New York, Massachusetts, Vermont, New Hampshire, Iowa, Connecticut, Washington, D.C. and within the Squamish Tribe [JURIST reports]. Civil unions or domestic partnerships are currently legal in Maine, Illinois, Delaware, Hawaii, California, Wisconsin, Nevada, Oregon and Washington and await ratification in Rhode Island [JURIST reports].




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ICTY orders Mladic medical exam
Jerry Votava on November 16, 2011 12:19 PM ET

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[JURIST] A panel of judges from the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] on Wednesday ordered [text, PDF; ICTY press release] the appointment of a medical expert to conduct a medical examination and issue a report on the physical condition of former Serbian general and alleged war criminal Ratko Mladic [ICTY backgrounder, PDF; JURIST news archive]. The order was issued in response to Mladic's absence last week from court due to illness. The court also noted that while the issue of Mladic's health had been raised on several past occasions in court and various filings, neither the prosecutor nor Mladic's defense team had requested a medical examination. The report is expected to be thorough in its review:
The Chamber ordered that the medical expert provide an assessment of Mladic's overall current health condition as well as an evaluation of his medical history, including the background to and current status of any health condition predating Mladic's arrival at the Detention Unit. The medical expert is to assess whether and to what extent his current overall health condition is related to his medical history.
Mladic has consented to the release of the medical information. However, the court warned that it is important not to interpret the results in any particular way as the public would not be served by positive or negative speculation.

In October, the ICTY prosecutor refused to seek further appeal [JURIST report] of the tribunal's refusal to split Mladic's trial into separate actions: one for his 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]. 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]. 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 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.




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Rights group urges Egypt military prosecutors to release blogger
Sung Un Kim on November 16, 2011 12:02 PM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] on Tuesday called on Egypt's military prosecutors to release Alaa Abd El Fattah [blog; Twitter feed], a blogger and activist who engaged in protests and accused the Supreme Council of Armed Forces (SCAF) [NYT backgrounder] of committing abuses, such as using military trials for civilians. He was charged with incitement and theft of a military weapon in connection with a demonstration at Maspero last month, which resulted in 27 deaths and more than 300 civilian injuries. The prosecutors on Sunday extended detention of Abd El Fattah for another 15 days. HRW urged the prosecutors to release him because of lack of evidence [HRW report] supporting the charges and the excessive force used by the military against civilians during the demonstration.
The military government has no business prosecuting Abdel Fattah, or any other civilian, in a military court, much less in a case involving the military's own unlawful violence against protesters. These charges presented without evidence against one of the country's best known activists are further reflection of the military's desire to silence its critics.
In addition to the call for Abd El Fattah's release, HRW criticized the military's concealment as to whether military officers are also being investigated related to the Maspero case and its rejection of any responsibility for the death of civilians during the demonstration despite of witness testimonies and a report [text, in Arabic] by the National Council for Human Rights (NCHR) [advocacy website] alleging to the contrary.

The UN Office of the High Commissioner for Human Rights [official website] last week expressed [JURIST report] in its briefing notes [text] concerns of Egypt's limitation for freedom of expression and association calling for release of Abd El Fattah who merely exercised his fundamental right to free speech. Earlier this month, the Egyptian activist group No Military Trials for for Civilians [Al Jazeera profile] condemned [statement, text] Abd El Fattah's arrest and imprisonment. The blogger and activist was initially imprisoned [JURIST report] for the charges [Bikay Masr report] last month.




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DOJ asks federal appeals court to block Alabama immigration law
Jamie Davis on November 16, 2011 10:14 AM ET

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[JURIST] The US Department of Justice (DOJ) [official website] on Monday filed a brief [text, PDF] in the US Court of Appeals for the Eleventh Circuit [official website] urging the court to strike down Alabama's immigration law [HB 56 text]. The DOJ filed its brief in response to a federal judge's September 28 ruling [opinion text] that allowed the state to enforce a provision that makes it a felony for an illegal alien to conduct business with the state, among other provisions. The DOJ argued in its brief that the Alabama immigration laws are preempted by federal laws regulating immigration in the US because of the Supremacy Clause [Cornell LII backgrounder] in the US Constitution. The DOJ stated:
[D]eterminations about the conditions under which aliens may live in the United States, including unlawfully present aliens, based specifically on their status as such, are reserved for the National Government. It is the National Government that is responsive to the competing goals of immigration policy on behalf of all the States and to the foreign policy concerns that must inform determinations about how foreign nationals in our Nation should be treated. ... H.B. 56 acts as a state immigration policy and not as a mechanism to regulate areas of legitimate state interest.
The American Civil Liberties Union (ACLU) [advocacy website] filed a separate brief [text, PDF] also asking the court to overturn the new law. The ACLU's brief argued that the laws are designed to make life in Alabama so difficult for illegal aliens that they will be forced to leave the state [JURIST op-ed]. Like the DOJ, the ACLU also argued that Alabama's law is a direct attempt to regulate immigration, which is an area that the states have no legitimate interest in regulating and is left only to the federal government to legislate.

In October, the Eleventh Circuit temporarily blocked [JURIST report] portions of the law after the US District Court for Northern Alabama [official website] twice refused to do so. Religious groups and representatives of several rights groups including the 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]. Since 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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Guatemala president approves US extradition of former president
Ashley Hileman on November 16, 2011 9:58 AM ET

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[JURIST] Guatemalan President Alvaro Colom [official website] on Tuesday said he will allow former president Alfonso Portillo [CIDOB profile, in Spanish] to be extradited to the US for trial. The charges against Portillo in the US stem from accusations of his involvement in money laundering and the embezzlement [AP report] of $1.5 million in foreign donations from Taiwan, which were to be used to buy schoolbooks for Guatemalan children. Instead, it is alleged that Portillo deposited the funds in various banks for his personal use. Upon extradition, which may not take place for months, Portillo will stand trial in the US District Court for the Southern District of New York [official website]. His extradition was approved [JURIST report] by a Guatemalan criminal court in March of 2010. Portillo, who was president from 2000 to 2004, was tried earlier this year in Guatemala on charges of embezzlement [JURIST report]. In that trial, he was accused of diverting approximately USD $15 million in funds from the Ministry of Defense. However, he was found not guilty after the judges determined that the evidence was insufficient to prove that he was personally involved.

Colom has also faced recent legal trouble. In August, the Guatemalan Constitutional Court [official website, in Spanish] ruled that former first lady Sandra Torres is ineligible to run for the office of president [JURIST report] because of her relationship to Colom, her ex-husband. Torres and Colom divorced earlier this year [BBC report] after Torres announced her plans to represent the ruling National Unity for Hope party in elections that will be held in September. The Guatemalan Constitution [text, PDF] bans relatives of the president from running for the office. Court President Alejandro Maldonado Aguirre held that because Torres was Colom's wife for most of the term, Torres would be in violation of the Constitution if she were to run for office. Otto Perez Molina, Torres' main opposition and leader of the Patriot Party, accused the two of fraud [BBC report] for divorcing in an effort to circumvent the constitutional ban. However, the court did not rule on whether this issue.




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Bangladesh political leader charged with crimes against humanity
Brandon Gatto on November 16, 2011 9:12 AM ET

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[JURIST] Prosecutors with Bangladesh's International Crimes Tribunal (ICTB) [Facebook page] Monday filed an application for formal charges against the detained leader of the Bangladesh Nationalist Party (BNP) [party website], alleging crimes against humanity committed during the Bangladesh Liberation War of 1971 [Bangladesh News backgrounder]. If the application is approved, Salauddin Quader Chowdhury will be formally charged [bdnews24.com report] with directly and indirectly contributing to every war crime covered by Bangladesh's International Crimes (Tribunals) Act of 1973 (ICA) [text, PDF], including genocide, rape and abduction. The senior BNP leader is accused of more than two dozen incidents of human rights violations, including the shooting deaths of several people and the torture of others in the basement of his father's Chittagong residence during the war, purportedly in an effort to aid anti-liberation forces of West Pakistan against then-East Pakistan. The ICTB was established specifically to address charges of war crimes and crimes against humanity committed during the 1971 conflict. Bangladesh's independence struggle against Pakistan lasted nine months.

Last month, the ICTB for the first time accepted charges against a suspect [JURIST report]—another senior opposition leader. Delwar Hossain Sayeedi, head of Jamaat e Islami (JI) [GlobalSecurity backgrounder], is charged with similar war crimes, also allegedly stemming from the 1971 conflict. The ICTB has accepted 20 of 31 charges including allegations of aiding anti-liberation forces through murder, rape, torching villages, looting and forcibly converting Hindus to Islam. The ICTB originally issued four arrest warrants [JURIST report] for such crimes in July 2010, and all four were filed against leaders of the JI. In May Human Rights Watch [advocacy website] sent a letter to the Bangladesh government praising its efforts through the ICTB to prosecute those responsible for atrocities committed during the war, but urging the government to ensure that the trials are carried out in accordance with international human rights expectations [JURIST report]. Bangladesh established the ICTB [JURIST report] in March 2010.




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Ukraine parliament rejects amendments designed to free ex-PM Tymoshenko
Julia Zebley on November 16, 2011 7:19 AM ET

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[JURIST] The Ukrainian Parliament [official website] on Tuesday voted against [agenda text] hearing amendments that would have effectively freed former prime minister Yulia Tymoshenko [personal website; JURIST news archive] by fining her rather than imposing a criminal sentence for the financial crimes she was convicted [JURIST report] of last month. However, 268 members of parliament passed [Interfax report] a presidential law "humanizing" economic crimes [JURIST report], but eliminated provisions favoring Tymoshenko, while 147 voted to include amendments favorable to Tymoshenko. Last week, the State Tax Service of the Ukraine [official website] announced new formal charges [JURIST report] against Tymoshenko for embezzlement and tax evasion. Current Ukrainian President Viktor Yanukovych [official website, in Ukrainian], Tymoshenko's political rival, maintains that the charges and convictions are not political [Interfax report], and that were he to intercede in the process to absolve Tymoshenko, it would become politicized. Yanukovych also recognized that Tymoshenko's jailing has affected the Ukraine's relationship with the EU. Last month, the European Parliament criticized the handling of Tymoshenko's case [JURIST report], calling it a violation of human rights.

Tymoshenko's prosecution has been highly controversial [JURIST comment] and has drawn harsh criticism internationally. The EU has condemned [JURIST report] her conviction as politically motivated and has indicated that it could harm Ukraine's bid for EU accession. In June, Tymoshenko filed a complaint [JURIST report] with the European Court of Human Rights alleging violations of the European Convention of Human Rights [text, PDF]. The complaint argued that the charges against Tymoshenko are politically engineered by current Yanukovych. 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. In August, the Kiev Appeals Court refused Tymoshenko's appeal of her detention for contempt charges [JURIST reports]. 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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Philippine Supreme Court allows ex-president Arroyo to travel despite pending charges
Jamie Reese on November 15, 2011 1:30 PM ET

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[JURIST] The Philippine Supreme Court [official website] issued a temporary restraining order [PDF] Tuesday allowing former president Gloria Macapagal-Arroyo [BBC profile; JURIST news archive] to leave the country despite accusations of corruption and electoral fraud. The court ruled 8 - 5 against government-imposed travel restrictions that started in August. Arroyo argued that she needs to travel abroad for medical treatment, unavailable in the Philippines, for a bone ailment, while government officials argued treatment is available in the Philippines and are concerned this is an attempt to flea the country. The opinion created three conditions that must be met in order for Arroyo to travel: a cash bond of two million pesos; appointment of a legal representative who will receive legal notices on behalf of Arroyo and her husband during their absence; and Arroyo is to notify the nearest Philippine consulate of their location at all times. Arroyo and her husband attempted to leave the country Tuesday after posting bond, but the government refused to allow them transit until they received an official copy of the order. A spokesperson for the government stated it plans to appeal the ruling. Oral arguments are set for November 22.

Arroyo was president of the Philippines from 2001-2010. She left after the Philippine Department of Justice (PDOJ) [official website] allegations and has denied any wrongdoing. Arroyo was elected to the House of Representatives [official website] last year after the Philippine Supreme Court ruled her eligible to run [JURIST report], despite protests that she had an unfair advantage. In July 2010, current President Benigno Aquino [BBC profile] signed an executive order [JURIST report] to set up a "truth commission" to investigate allegations that the outgoing administration engaged in corruption and rights violations. She was accused in 2007 of tampering with the congressional election results and illegally using governmental money in 2004 for her presidential campaign.




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France court begins trial of accused Somali pirates
Rebecca DiLeonardo on November 15, 2011 11:07 AM ET

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[JURIST] Six accused Somali pirates [JURIST news archive] went on trial in Paris Tuesday on charges of hijacking, kidnapping and armed robbery in connection with a 2008 attack on a yacht. Then men are accused [CNN report] of capturing the Carre-d'As IV in the Gulf of Aden and holding a French couple hostage for two weeks, allegedly demanded a ransom of USD $2 million. This marks France's first-ever piracy trial, with three additional trials expected to follow. The accused face life in prison [BBC report] if convicted, and the trial could last until early December.

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 International Maritime Bureau (IMB) [official website]. Last month, UN Assistant Secretary-General for Political Affairs Taye-Brook Zerihoun [official profile] urged the international community to increase efforts to combat Somali piracy [JURIST report]. Zerihoun's concerns stemmed from the Security Council's adoption [JURIST report] of a resolution [text] in October, urging member states to make piracy a crime and establish anti-piracy courts [webcast] due to the rise in maritime piracy crime off the coast of Somalia. France is the newest addition to the limited list of countries that have attempted to prosecute piracy, which includes Germany, Seychelles, the Netherlands, Mauritius, Yemen, Somalia, Spain and the US [JURIST reports].




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Louisiana challenges count of undocumented immigrants in US census
Jennie Ryan on November 15, 2011 11:03 AM ET

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[JURIST] The state of Louisiana on Monday filed suit [text, PDF] directly with the US Supreme Court [official website] arguing that undocumented immigrants should not be counted in the US census for the purpose of determining seats in the US House of Representatives [official website]. The state alleges that it was put at a disadvantage when population totals were determined and that it lost a seat in the House because undocumented immigrants were improperly counted in census totals. The suit also alleges that "[b]ecause the population of non-immigrant foreign nationals is not distributed uniformly among the States, the inclusion of these individuals in apportionment figures alters the apportionment of seats in the House of Representatives among the States" resulting in states with larger immigrant populations attaining greater electoral power, including greater strength in the Electoral College. Art. I, Sec. 2, Cl. 3 [text] of the US Constitution [text] states that seats in the House "shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State" and it provides that a census shall be taken every 10 years. Louisiana argues that under the Constitution, undocumented foreign nationals should not be counted in census figures. Rather, the state argues, only individuals with a permanent legal residence in a state should be counted for purposes of House seat apportionment. The Supreme Court must now decide whether to allow the suit to go forward.

Immigration has been a hot-button issue across the US recently. A controversial Arizona immigration law [SB 1070 materials; JURIST news archive] has spurred numerous legal challenges as well as influencing similar legislation in states such as Alabama, Georgia, Indiana, Oklahoma, South Carolina, Utah and Virginia [JURIST reports]. Last year, the US Department of Justice [official website] filed suit [JURIST report] against Arizona Governor Jan Brewer (R) [official website] seeking to permanently enjoin that 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. That case has been appealed [JURIST report] to the Supreme Court. In October, a federal judge dismissed a counterclaim [JURIST report] filed by Brewer and state Attorney General Tom Horne [official profile] against the US government in the lawsuit challenging the Arizona immigration law. 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.




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Malaysia rights group to hold symbolic war crimes trial for former US, UK leaders
Jaimie Cremeans on November 15, 2011 10:37 AM ET

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[JURIST] The Malaysian Kuala Lumpur Foundation to Criminalise War (KLFCW) [official website] will hold a symbolic four-day war crimes trial [press release] against former US president George W. Bush, former UK prime minister Tony Blair [JURIST news archives] and other former US officials on charges in connection to the March 2003 invasion of Iraq. The trial, set to begin Saturday, will be adjudicated by the Kuala Lumpur War Crime Tribunal (KLWCC), which consists of prominent legal minds including retired and non-retired Malaysian judges, lawyers, authors and professors. The KLWCC is charging Bush and Blair with crimes against peace for invading Iraq in violation of the UN Charter [text] and international law. The KLWCC is also charging Bush and seven other former US officials, including former vice president Dick Cheney and former secretary of defense Donald Rumsfeld, with the crime of torture and war crimes for their treatment of prisoners throughout the Afghanistan and Iraq wars. The group alleges that the US leaders acted in violation of the UN Charter, the Geneva Convention of 1949 [text, PDF] and the Universal Declaration of Human Rights [text]. The KLFCW stated:
The Commission, having received complaints from war victims in Iraq in 2009, proceeded to conduct a painstaking and an in-depth investigation for close to two years and in 2011, constituted formal charges on war crimes against Bush, Blair and their associates.The Iraq invasion in 2003 and its occupation had resulted in the death of 1.4 million Iraqis. Countless others had endured torture and untold hardship. The cries of these victims have thus far gone unheeded by the international community.
In the event of a conviction, the names of individuals found guilty will be entered into the Commission's Register of War Criminals and published globally.

Various human rights groups have filed charges against US and UK officials alleging war crimes committed in Afghanistan and Iraq. In October, the attorney general for British Columbia blocked a lawsuit [JURIST report] filed by the Canadian Centre for International Justice [advocacy website] against Bush on torture allegations. 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. In February, the Center for Constitutional Rights and the European Center for Human Rights [advocacy websites] urged the signatory states of the UN Convention Against Torture (CAT) [text] to pursue criminal charges [JURIST report] against Bush. Other calls to investigate the criminal culpability of Bush and officials in his administration have been rejected consistently by US officials [JURIST report]. In 2010, a former UN official strongly suggested [JURIST report] a war crimes investigation of actions by both sides in the Afghanistan war. In 2009, the UK High Court criticized [JURIST report] its own Ministry of Defense for failure to investigate or release documents regarding a claim of war crimes against UK soldiers in Iraq.




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Australia PM proposes vote on same-sex marriage
Alexandra Malatesta on November 15, 2011 9:26 AM ET

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[JURIST] Australian Prime Minister Julia Gillard [official website] said Tuesday that, while she is personally opposed to same-sex marriage [JURIST news archive], the decision should be left to parliamentary vote [SMH op-ed]. Gillard called on the Australian Labor Party [party website] to back her adamant position that the institution of marriage has a particular meaning and should remain unchanged:
Many will ask, what is my personal opinion and where do I stand in the debate? As I have said many times, I support maintaining the Marriage Act in its current form, and the government will not move legislation to change it. My position flows from my strong conviction that the institution of marriage has come to have a particular meaning and standing in our culture and nation and that should continue unchanged. The Labor Party platform currently reflects this view.
Her opinion has come under attack by members of her own party as well as by parties on the liberal left, such as the Greens [party website], who believe that legislatively recognizing consenting adults' right to choose, regardless of sexual identity, is the modern trend and essential for marriage equality. Currently only three Australian states recognize civil unions, though a poll shows that a majority of Australians favor same-sex marriage.

Australia historically has had a tumultuous past protecting the rights of same-sex couples but nevertheless denying the right to same-sex marriage. In May 2008, the Australian government abandoned a proposal [JURIST report] to legally recognize same-sex civil union ceremonies after the Australian federal government threatened to veto Civil Partnerships Bill 2006 [legislative materials] if it passed the Legislative Assembly [official websites]. Australian Capital Territory Attorney General Simon Corbell said that the self-governing territory will now move to legalize civil partnerships without ceremony so that same-sex couples can have access to Commonwealth pensions, tax and social security benefits. The Civil Partnerships Bill was introduced after an earlier civil unions law [legislative materials] was actually overturned by the federal government [JURIST report] because that law's attempt to equate civil unions with marriage was determined to be unacceptable. In April of 2008, the Australian government introduced legislation to amend over 100 federal laws [press release] to remove discrimination against same-sex couples but continued to bar same-sex marriage.




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Brazil grants first citizenship based on same-sex marriage
Drew Singer on November 15, 2011 8:35 AM ET

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[JURIST] The Brazilian government on Monday granted citizenship for the first time to a foreigner based on his same-sex marriage [JURIST news archive]. Spaniard Antonio Vega Herrera will become a Brazilian citizen due to his marriage with his Brazilian partner, according to the country's Federal Register [AP report]. The news comes a month after Brazil's High Court of Justice [official website, in Portuguese] upheld [JURIST report] the same-sex marriage of two women. The court voted 4-1 in favor 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.

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.




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Scotland rights body rejects UK bill of rights plans
Drew Singer on November 15, 2011 7:47 AM ET

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[JURIST] The Scottish Human Rights Commission [official website] on Monday condemned [text, DOC] plans for a UK Bill of Rights [materials; JURIST news archive]. The Bill of Rights would replace the UK Human Rights Act [text, PDF], but Commission leader Alan Miller [official profile] said the new legislation would weaken civil liberties rather than protect them. Instead, he argued, the UK should adopt more international human rights conventions into the already existing Human Rights Act:
The status quo is not acceptable either. SHRC's recommendation is that all of the UK's international human rights obligations are incorporated into domestic law, including the UN Convention on the Rights of the Child, the UN Convention on the Rights of Persons with Disabilities and the International Covenant on Economic, Social and Cultural Rights, which is overdue. These protections for the public are all the more necessary in the present times of austerity when budgetary decisions need to be made in ways which do not disproportionately impact upon the most vulnerable in our community.
The UK Bill of Rights Commission was appointed by the Ministry of Justice [official websites] and should conclude its work next year.

In February, former UK Lord Chief Justice Lord Woolf warned that a British Bill of Rights, as proposed by various members of the British government, would conflict [JURIST report] with the European Convention on Human Rights [text, PDF], 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 has warned that continued adherence to the convention combined with the creation of a British Bill of Rights will create complications for judges in determining which to follow and further the existing conflict between the UK and the European Court of Human Rights [official website].




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UN rights office voices concern over Egypt military trial for blogger
Jerry Votava on November 14, 2011 2:30 PM ET

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[JURIST] The UN Office of the High Commissioner for Human Rights (OHCHR) [official website] voiced concern [UN News Centre report] on Friday regarding recent events in Egypt, "including the military trial and jailing of a blogger/activist." The blogger, Alaa Abdel Fattah, was imprisoned [JURIST report] by Egypt's Supreme Council of the Armed Forces (SCAF) [NYT backgrounder] at the end of October after refusing to answer prosecutors' questions because he thought that it was a conflict of interest to the military to investigate itself. The SCAF has accused Abdel Fatah for inciting violence during protests in October in which 27 people were killed and 300 people were injured. In their briefing notes [text] on the the issue, the OHCHR indicated that they had been closely following events in Egypt since the ousting of former president Hosni Mubarak [Al Jazeera profile] and are concerned about what appears to be a diminishing public space for freedom of expression and association. They went on to say:
Civil society organisations and human rights activists, whose courage and non-violent protest brought about the change of regime in Egypt, must be guaranteed space for open debate, even if it means that the interim authorities are harshly criticised in public fora.
The OHCHR "called for the release of Mr. Abdel-Fatah and all others who have been imprisoned for exercising their fundamental rights to free speech and association."

In October, Human Rights Watch (HRW) [advocacy website] warned [JURIST report] that the SCAF may have attempted to cover up various aspects of the killing of more than two dozen mostly Coptic Christian demonstrators. 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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Egypt court suspends verdict banning officials from election
Sung Un Kim on November 14, 2011 2:24 PM ET

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[JURIST] The Egypt Supreme Administrative Court on Monday suspended [Al Ahram report] a verdict handed down last week by the Mansoura Administrative Court that prohibited former officials of the National Democratic Party (NDP) to participate in the upcoming election. As a result, most of the officials who joined other parties or plan to run independently are now allowed to continue their campaigns for the election that will begin on November 28. Parties and political forces had demanded [Al Ahram report, in Arabic] the implementation of rule of law and urged the court to prohibit former NDP officials from running in the election. They based their position on the involvement of those officials during the 30-year reign of ousted Egyptian leader Hosni Mubarak [Al Jazeera profile; JURIST news archive] that, they claim, deprived Egyptian citizens of their free will. The court has not indicated when it will hand down its final verdict.

The November 28 election is considered the first free election following the overthrow [JURIST report] of Mubarak in February. Consequently, the upcoming elections have resulted in various legislative and court activities. This month, Egypt stated that it will amend its constitution [JURIST report] based on a court ruling from a week before in order to allow citizens living abroad to vote in the parliamentary election. In addition, the Supreme Council of the Armed Forces (SCAF) [NYT backgrounder] announced that it will create a law that will ban [JURIST report] anyone found guilty of corruption from the election process. Mubarak himself is faced with charges of complicity in the deaths of more than 800 protesters [JURIST report] during the pro-democracy demonstrations in Egypt [JURIST news archive]. His trial was adjourned [JURIST report] last month and will not resume until December 28. Also last month, an Egyptian court overturned [JURIST report] a ban prohibiting formation of religious-based political parties. Some restrictions, however, still exist in the election process such as prohibition of using religious slogans [JURIST report] during campaigns.




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Staff shortages burdening UN war crimes tribunals
Jamie Davis on November 14, 2011 11:01 AM ET

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[JURIST] The presidents of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) on Friday told the UN General Assembly [official websites] that the tribunals are in need of experienced staff to complete their work [UN News Centre report]. The presidents warned of the difficulties in retaining staff at the ICTY and the ICTR because both tribunals are nearing the end of their work and employees are leaving for more permanent jobs. ICTY Judge Patrick Robinson told the General Assembly that while the ICTY has made considerable progress in conducting the trials of war criminals, the process is greatly impeded by the "alarming rate" at which tribunal staff is resigning and the large burdens that are left for the remaining staff. ICTR Judge Khalida Rachid Khan also spoke the General Assembly of the challenges the ICTR faces with many of its employees leaving while also attempting to evade an "impunity gap." Khan reported that while the ICTR has tried and convicted many individuals, there is still unfinished work that must be completed to ensure that all war criminals are held accountable. The most critical issue remaining in the ICTR is the need to capture the nine remaining at-large fugitives, three of whom are among the most high-ranking accused, in order to send the message to the international community that "evading justice is not an option." The tribunal presidents proposed a retention incentive measure in an effort to maintain staff levels.

While each tribunal has successfully tried and convicted numbers of war criminals since its inception, there are still many key trials pending. Serbian general Ratko Mladic [ICTY backgrounder, JURIST news archive] is being held pending his trial at The Hague following his May arrest [JURIST report] after 16 years on the run. He is charged with committing war crimes during the Bosnian civil war [JURIST news archive] and the Srebrenica massacre [JURIST news archive] where 8,000 people were killed. Croation Serb rebel leader Goran Hadzic [ICTY backgrounder], who was arrested [JURIST report] in June, is also being held at The Hague pending his trial also on charges of war crimes committed during the Bosnian civil war and Srebrenica massacre. Rwandan genocide suspect and former Hutu militia leader Bernard Munyagishari is awaiting trial at the ICTR for charges of genocide and crimes against humanity, including rape. He is alleged to have recruited, trained and led a militia group that killed and raped Tutsi women during the 1994 Rwandan genocide [BBC backgrounder; JURIST news archive].




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Equatorial Guinea holds referendum on constitutional changes
Jennie Ryan on November 14, 2011 10:27 AM ET

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[JURIST] The Republic of Equatorial Guinea [official website, in Spanish] held a referendum [press release, Spanish] on Sunday that would institute a number of changes to the country's constitution [text, in Spanish]. The proposed reforms include a limit on the number of terms a president can serve, the creation of the office of vice president and a provision allowing the current president to pick his successor, as well as the removal of an existing age limit on the presidential office. While the county's government has called the reform democratic [Reuters report], opponents of the referendum have criticized the move as a grab for power by President Teodoro Obiang. In a joint statement [text], Human Rights Watch (HRW) and EG Justice [advocacy websites] said the constitutional changes "will strengthen the near-absolute powers of President Teodoro Obiang Nguema Mbasogo and further deprive citizens of their civil and political rights." They sharply criticized the provision allowing the president to choose his vice president, arguing that the change would allow Obiang "to hand-pick his successor and to retain significant political influence even after he leaves office." The final official vote count on the referendum is expected sometime Tuesday.

Equatorial Guinea has been criticized by international human rights groups in the past. In August 2010, Amnesty International (AI) [advocacy website] condemned the execution [press release] of four men convicted [JURIST report] of attempting to assassinate Obiang during a 2009 attack on the presidential palace. Denouncing the government's judicial procedures, AI reported that these men were convicted after an unfair trial, sentenced to death and executed without having an opportunity to appeal their sentence. AI urged Equatorial Guinea to put an end to the abductions, torture and executions it carries out in the name of justice. Obiang defended [JURIST news report] the trial and execution of the four men. He stated that the country's laws were respected, and procedures guaranteeing a legal, open and fair trial, including the guarantee of defense counsel, were followed.




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Supreme Court to rule on health care reform law
Jaclyn Belczyk on November 14, 2011 10:20 AM ET

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[JURIST] The US Supreme Court [official website] agreed Monday to hear arguments on the constitutionality of the Patient Protection and Affordable Care Act (PPACA) [text; JURIST backgrounder]. The court granted certiorari [order list, PDF] in three separate cases, reserving five-and-half-hours for oral argument on the issue. The court agreed to hear two hours of arguments on the constitutionality of the individual insurance mandate issue in Department of Health and Human Services v. Florida [docket; cert. petition, PDF]. The court will consider Issue 1, which asks, "whether Congress had the power under Article I of the Constitution to enact the minimum coverage provision." The court also directed parties to brief and argue the question of whether the challenge to PPACA is barred by the Anti-Injunction Act [26 USC § 7421(a)], reserving one hour for argument on that issue. The court consolidated the cases of National Federation of Independent Business v. Sebelius [docket; cert. petition, PDF] and Florida v. Department of Health and Human Services [docket; cert. petition, PDF] and will hear 90 minutes of oral argument on the question of whether the individual mandate provision can be severed from the remainder of the act. Finally, the court will hear one hour of oral argument on the question of Medicaid expansion—Issue 1 in Florida v. Department of Health and Human Services: "Does Congress exceed its enumerated powers and violate basic principles of federalism when it coerces States into accepting onerous conditions that it could not impose directly by threatening to withhold all federal funding under the single largest grant-in-aid program...?"

All three cases that the court agreed to hear arose out of the US Court of Appeals for the Eleventh Circuit, which ruled in August that the individual mandate is unconstitutional but severable [JURIST report], upholding the rest of the law. The court took no action on an appeal by the Thomas More Law Center of a Sixth Circuit ruling upholding the individual mandate [JURIST reports]. The court also did not act on appeals by Virginia and Liberty University of two Fourth Circuit rulings which dismissed their challenges for lack of standing [JURIST reports]. Last week, the US Court of Appeals for the District of Columbia Circuit upheld the constitutionality [JURIST report] of PPACA.

Also Monday, the court granted certiorari in two other cases. In Astrue v. Capato [docket; cert. petition, PDF], the court will rule on whether a child who was conceived after the death of a biological parent, but who cannot inherit personal property from that biological parent under applicable state intestacy law, is eligible for child survivor benefits under Title II of the Social Security Act [42 USC § 401 et seq.]. There is a circuit split [JURIST report] on the issue. In Armour v. Indianapolis [docket; cert. petition, PDF], the court will decide whether the Equal Protection Clause precludes a local taxing authority from refusing to refund payments made by those who have paid their assessments in full, while forgiving the obligations of identically situated taxpayers who chose to pay over a multi-year installment plan.




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UN rights expert questions UK torture inquiry
Ashley Hileman on November 13, 2011 2:28 PM ET

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[JURIST] A UN official on Saturday expressed concern regarding the lack of transparency in an inquiry by the UK into allegations that its secret services were complicit in torture of detainees in the aftermath of 9/11. The UN's Special Rapporteur on Torture, Juan Mendez, has doubts as to whether the proposed inquiry will meet international standards [Guardian report], while other human rights organizations criticize it because of its requirement that disclosures be made only with governmental approval. Additionally, the inquiry is powerless to compel witnesses or the release of relevant documents, and it provides no status in the proceedings for individuals alleging to be victims of UK torture. The combination of secrecy and limited power has led many to wonder if it will be effective in determining whether torture and other violations of human rights were committed by security services. The panel charged with completing the inquiry [JURIST report] was created by UK Prime Minister David Cameron [official website] in July. The need for the inquiry arose after 12 ex-detainees brought civil cases against the government, claiming that British agents took part in their mistreatment while they were held in prisons in foreign countries, including Pakistan and Morocco.

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




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Myanmar rights body urges release of political prisoners
Maureen Cosgrove on November 13, 2011 12:42 PM ET

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[JURIST] The Myanmar National Human Rights Commission (MNHRC) on Sunday urged President Thein Sein [BBC profile] to release political prisoners [letter, PDF]. In an open letter to Sein published in three state-owned newspapers, the MNHRC indicated that domestic and international support would follow the prisoners' release. Sein had granted amnesty to 6,359 prisoners in October following a similar open letter issued by the MNHRC. MNHRC Chairman Win Mra called for the release of the political prisoners and recommended that Sein transfer certain prisoners to prisons closer to their families:
The release of the remaining prisoners, including those cited above convicted for breach of existing laws who do not pose a threat to the stability of State and public tranquility, in the interest of national races, will not only enable them to participate in whatever way they can in the nation-building tasks but also will in a way help promote national unity. Accordingly, the Myanmar National Human Rights Commission again humbly requests the President as a reflection of his magnanimity to include those prisoners when a subsequent amnesty is granted. If for reasons of maintaining peace and stability, certain prisoners cannot as yet be included in the amnesty, the Commission would like to respectfully submit that consideration be made for transferring them to prisons with easy access for their family members.
The MNHRC estimates that there are 500 prisoners of conscience in Myanmar custody, while other estimates reach 2,000. Some sources suggest that amnesty will be granted [AP report] to the prisoners as early as Monday.

In October, UN Secretary-General Ban Ki-moon [official profile] welcomed [statement] the release of political prisoners by Myanmar's president, while urging the government to release all political prisoners [JURIST report] in accordance with the rule of law. Days earlier, 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 pro-democracy leader Aung San Suu Kyi [BBC profile; JURIST news archive]. 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. Myanmar's government formed the MNHRC [JURIST report] in September 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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New charges formalized against Ukraine ex-PM Tymoshenko
Julia Zebley on November 12, 2011 1:14 PM ET

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[JURIST] The State Tax Service of the Ukraine [official website] on Friday announced formal charges [press release, in Ukrainian] against former prime minister Yulia Tymoshenko [personal website; JURIST news archive] for embezzlement and tax evasion. The new charges allege [RIA Novosti report] that during her time as head of United Energy Systems of Ukraine (UESU) in 1996, Tymoshenko hid $165 million of corporate revenue and accumulated $5.8 million through tax fraud. Tymoshenko received notice of the charges [JURIST report] earlier this week. Last month, the Security Service of Ukraine [official website] brought new corruption charges against Tymoshenko days after she was sentenced [JURIST reports] to seven years in prison on charges of abuse of power and corruption. Serhiy Vlasenko, Tymoshenko's lawyer also announced on Thursday that her official appeal [press release] will be heard on December 13.

Tymoshenko's trial resumed at the end of September after a two-week recess [JURIST reports]. In August, the Kiev Appeals Court refused Tymoshenko's appeal of her detention for contempt charges [JURIST reports]. Also in August, Judge Rodoin Kireyev rejected a request [JURIST report] from Tymoshenko to release her from prison. In July, the Security Service of Ukraine (SBU) [official website, in Ukrainian] announced that they are launching a criminal investigation [JURIST report] into UESU, an energy company at one time headed by Tymoshenko. 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. 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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UN rights chief calls for investigation into South Sudan bombing
Dan Taglioli on November 12, 2011 1:07 PM ET

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[JURIST] UN High Commissioner for Human Rights Navi Pillay [official profile] called Friday for an investigation [press release] of the previous day's aerial bombing of a refugee camp in Unity State in South Sudan. Refugees in the camp claimed to witness [BBC report] an Antonov plane, often used by northern Sudan [BBC backgrounder] as a makeshift bomber, circling the camp and then making two bombing runs, reportedly dropping five bombs, of which four exploded. Pillay noted that the information available at the time suggested that the bombing may amount to an international crime or serious human rights violation. Pillay expressed alarm about the fighting and indiscriminate attacks that continue to take place just across the border in Sudan's Southern Kordofan region, violence which has spilled over into neighboring states, including those in South Sudan:
This latest attack risks aggravating what is already an extremely tense and dangerous situation. ... The camp at Yida, which is close to the border with Sudan, is housing thousands of civilians, including women and children. ... There needs to be an independent, thorough and credible investigation to establish the precise circumstances of this aerial bombing, and if indeed it is established that an international crime or serious human rights violation has been committed, then those responsible should be brought to justice.
Many suspect that the bombing raid order came from Khartoum, but a Sudan Armed Forces spokesman vehemently denied any links to the raid. South Kordofan remains a disputed territory between Sudan and South Sudan due to the region's extensive oil reserves.

The Republic of South Sudan was recognized as an independent country [JURIST report] in July, making it the world's 193rd nation. In February, Sudanese President Omar al-Bashir [BBC profile; JURIST news archive], who campaigned against secession, issued a formal decree [JURIST report] accepting the result of the referendum. However, tensions between the newly independent country and Sudan remain high. Much of the recent violence stems from action in the South Kordofan region between Sudanese troops and troops loyal to South Sudan's army. In June a UN official denounced continued human rights abuses [JURIST report] against civilians in the region. The UN Under-Secretary-General for Humanitarian Affairs [official website] and Emergency Relief Coordinator Valerie Amos [official profile] said that the UN knows of more than 70,000 people who have been displaced by the conflict, many of whom are subject to violence and targeting due to their ethnic heritage. Additionally, the UN reported that several peacekeepers had been held and tortured [UN News Centre report] in the region, and that those providing humanitarian relief are vulnerable.




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UN SG accused of undermining judges' authority
Dan Taglioli on November 12, 2011 12:00 PM ET

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[JURIST] An internal UN conflict was publicized [Fox News report] Friday concerning a dispute between UN Secretary General Ban Ki-moon [official website] and the judges he appointed to his employee rights safeguards tribunals. Just over two years after Ban instituted the internal justice system, its judges have charged the UN chief with attempting to limit their powers and "undermine the integrity of the Tribunal and its independence" through his recommendations outlined in an August 8 report [text] to the UN General Assembly (GA) [official website]. Ban's review outlined several procedural changes to the operations of the UN Dispute Tribunal and Appeals Tribunal [official websites], prompting a response from the judges in an open missive [text] to the GA on October 10. One of the Ban's contentious proposals is to suspend the Dispute Tribunal's ability to enforce interlocutory orders while the judgments are being appealed to the to the Appeals Tribunal, the UN's highest judicial body. The judges claim such a change would render the court toothless and "enable either party [to a dispute] to paralyze the [case management] process, thus preventing the Dispute Tribunal from the speedy and cost-efficient disposal of cases for which it has been praised by the General Assembly." Also disputed is Ban's proposal to remove the Tribunals' appellate power over decisions of the UN Ethics Offices [materials] and the Office of Internal Oversight Services [official website]. A Washington-based organization that protects organizational dissidents, the Government Accountability Project (GAP) [official website; report], was heavily involved in the original design of the UN's whistleblower protection rules and stated this week that Ban's proposal "would result in UN whistleblowers having little recourse when they are subjected to retaliation and would effectively render whistleblower protections at the United Nations meaningless." GAP observed that over 99 percent of retaliation cases reviewed by the Ethics Offices resulted in no substantiation for the whistleblowers involved. Also contained in Ban's report are requests for a $1 million increase in the internal justice system budget and 26 additional support staff for the judges, as well as the creation of a mechanism to deal with complaints against the judges themselves.

The tribunals were authorized in 2007, pursuant to GA resolution 62/228 [text, PDF]. The Appeals Tribunal is charged with appellate review of decisions of the Dispute Tribunal, which hears grievance and discipline disputes between UN members. Judges were appointed [JURIST report] in 2009, including one American judge, Mark Painter [personal website]. The UN Internal Justice Council (IJC) [UN backgrounder] was responsible for advising the GA on appropriate judges for the two tribunals. The IJC was formed in 2007 following an independent review of UN internal justice procedures. The two-tiered tribunal system was also one of the suggestions put forth by the independent "Redesign Panel" convened in 2006 at the behest of the GA after then-secretary general Kofi Annan had called the UN's internal justice system slow and cumbersome.




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DOJ urges Supreme Court not to hear Arizona immigration law appeal
Alexandra Malatesta on November 11, 2011 2:18 PM ET

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[JURIST] The US Department of Justice (DOJ) on Thursday urged [brief, PDF] the US Supreme Court [official websites] not to hear Arizona's appeal of a decision [opinion, PDF] enjoining four provisions of the state's controversial immigration law [SB 1070 materials; JURIST news archive]. The US Court of Appeals for the Ninth Circuit [official website] upheld an injunction in April before the law ever took effect, and Arizona is now asking the high court [JURIST reports] to address whether the state law is preempted by federal immigration legislation. While the state maintains that the Ninth Circuit incorrectly concluded that the state law was facially preempted and "declined to determine whether there were constitutional applications" of the Arizona immigration legislation, the DOJ insists the courts properly blocked [AP report] the provisions. SB 1070, which criminalizes illegal immigration and requires police officers to question an individual's immigration status if the officer has a "reasonable suspicion" to believe an individual is in the country illegally, was signed into law [JURIST report] in April of last year.

This request is part of a long line of legal challenges to the Arizona law. Earlier this month, advocacy groups filed suit in the US District Court for the District of Arizona asking a federal judge to block enforcement [JURIST report] of the portion of the state's controversial immigration law that bans blocking traffic to acquire or offer day labor services. Last month, a federal judge dismissed a counterclaim [JURIST report] filed by Arizona Governor Jan Brewer [official website] and state Attorney General Tom Horne [official profile] against the US government in the lawsuit challenging the controversial Arizona immigration law. In a preview of how it might rule should it decide to hear the case, the Supreme Court in May ruled [opinion, PDF; JURIST report] in Chamber of Commerce v. Whiting [Cornell LII backgrounder] that Arizona's controversial employment related immigration law [materials] is not preempted by the Immigration Reform and Control Act (IRCA) [text]. Last year, the Department of Justice sued [JURIST report] the state of Arizona and Governor Brewer over SB 1070, arguing that both the Constitution and federal law "do not permit the development of a patchwork of state and local immigration policies throughout the country."




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Kosovo politician on trial for war crimes
Alexandra Malatesta on November 11, 2011 1:41 PM ET

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[JURIST] Kosovo politician and parliamentarian Fatmir Limaj went on trial on Friday for war crimes allegedly committed during the 1998-99 Kosovo war with Serbia [BBC backgrounder; JURIST news archive]. Limaj allegedly ordered two captured Serb policemen executed and tortured another Serbian captive in 1999. Limaj is also under investigation for embezzling funds while serving as transport minister. The senior politician, along with eight other other defendants who also pleaded not guilty, was taken into the Pristina District Court under tight security measures [AP report] early Friday morning, where he will be tried in front of two EU judges and one Kosovo judge. Though much of the prosecution's case relied upon a former member of the Kosovo Liberation Army, who was found hanged [Reuters report] in September in an apparent suicide, the trial is expected to conclude early next year.

The European Rule of Law Mission in Kosovo (EULEX) [official website] has been investigating war crimes [JURIST report] since December 2008. An influential figure in the ruling Democratic Party of Kosovo (PDK) [official website, in Albanian], Limaj was excluded from a cabinet position following international pressure not to include corrupt officials, but was elected into the Kosovo parliament. Limaj is an ex-member of the Kosovo Liberation Army (KLA) and is viewed as a liberator by many ethnic Albanians. In 2005, Limaj was acquitted of similar charges by a war crimes tribunal in The Hague because of insufficient evidence. An EU judge in September placed Limaj under house arrest [JURIST report] while awaiting trial. In September, EULEX charged 10 former members of the KLA [JURIST report], including Fatmir Limaj, with war crimes for their actions during the 1998-1999 war in Kosovo.




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Syria forces committing crimes against humanity: HRW
Matthew Pomy on November 11, 2011 12:40 PM ET

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[JURIST] Syrian governmental forces have been committing crimes against humanity [press release], including torture and unlawful killings of anti-government protesters in Homs, Syria [map], according to a Human Rights Watch (HRW) [advocacy website] report [text, PDF] released Friday. According to HRW, Homs, a governorate with some of the strongest anti-government leanings, has become "a microcosm of the Syrian government's brutality." HRW estimates security forces have killed more than 3,100 protesters in an effort to silence the movement. In addition to killings, the report offers evidence that Syrian forces have engaged in forced disappearances, torture and arbitrary detention. Violence in Syria continues despite reaching an agreement earlier this month with the Arab League to take measures to end the violence. The Arab League [CFR backgrounder] is scheduled to have an emergency meeting on November 12 to discuss the issue of Syria breaking the agreement. HRW is recommending that the Arab League suspend Syria as a consequence of failing to abide by the agreement. HRW further recommends:
the Syrian government immediately to halt the use of excessive and lethal force by security forces against unarmed demonstrators and activists ... and to provide immediate and unhindered access to human rights groups and journalists to the governorate of Homs, including hospitals, places of detention, and prisons [and that] the United Nations Security Council to take action, separately and jointly, to protect civilians by pushing for international civilian observers to deploy inside Syria, including in Homs Governorate in order to monitor human rights violations.
HRW argues that the international response to the situation has been inadequate so far, but taking these measures would be a step in the right direction.

Earlier this week, the UN Office of the High Commissioner for Human Rights [official website] announced that the death toll of Syrian protesters has exceeded 3,500 [JURIST report]. Last week, Syrian President Bashar al-Assad offered amnesty [JURIST report] to any protester who surrendered themselves. In October, 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]. The violence has been condemned [JURIST report] by both the UN and the Arab League. Fighting is not limited to the Homs region—HRW released a report [HRW report] in June of this year detailing rights abuses in the Daraa Governorate. There has been a major struggle to put an end to Syrian violence since the protests began earlier this year. In April, Assad ended [JURIST report] the country's 48-year-old state of emergency, but protests have continued.




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ICC prosecuter: DRC must avoid election violence
Rebecca DiLeonardo on November 11, 2011 12:21 PM ET

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[JURIST] International Criminal Court (ICC) [official website] chief prosecutor Luis Moreno-Ocampo [official profile] said Friday that his office would prosecute individuals involved election violence [statement] in the Democratic Republic of the Congo (DRC). The DRC is expected to hold presidential and parliamentary elections on November 28. The prosecutor's statement follows a UN report [text, PDF] published earlier this month encouraging an end to election violence[JURIST report]. The report, published by theUN Joint Human Rights Office (UNJHRO) [official website] alleges that 188 cases of human rights violations related to the electoral process have occurred in the last year. Moreno-Ocampo indicated that it was important to encourage a peaceful electoral process in the DRC and to prosecute offenders. He stated that his office is investigating the alleged violence and will prosecute those who perpetrate violence:
We are keeping watch to ensure that the process does not lead to acts of violence or attacks against the civilian population. We are paying particular attention to reports of inciting hatred, exclusion and physical violence by various political figures in Kinshasa and across the entire country. Electoral violence can result in the commission of crimes falling within our jurisdiction. No one should doubt our resolve to prevent crimes or, if need be, prosecute individuals, as we are doing in Kenya and Cote Ivoire.
The prosecutor expressed a resolve to investigate all those responsible for election violence regardless of political affiliation. Daniel Ngoy Mulunda, the head of Congo's election commission, said the ICC is welcome to monitor electoral procedures [Reuters report] and investigate any violence in the electoral process.

The DRC has faced numerous accusations of human rights violations in the past. In June, four policemen were sentenced [JURIST report] to death for killing a prominent human rights activist. In February, a military official and his subordinates were sentenced for mass rape [JURIST report] that occurred on New Year's Eve. In addition to human rights violations, the DRC faced some minor issues such as arresting [JURIST report] six election officials for ballot fraud but there has been no violence related to election reported.




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Prosecutors urge Lebanon tribunal not to initiate trial in absentia
Sarah Posner on November 11, 2011 11:23 AM ET

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[JURIST] Prosecutors at the UN Special Tribunal for Lebanon (STL) [official website] urged the judge Friday to wait to commence the trial in absentia [press release] of four Hezbollah members indicted for killing former Lebanese prime minister Rafik Hariri [BBC profile; JURIST news archive]. The STL has faced great difficulty [Reuters report] trying to arrest the members of Hezbollah in Lebanon where the Shiite militia Hezbollah, backed by Iran, is the country's most powerful political force. Hezbollah has denied involvement in the suicide bombing on February 14, 2005, which killed Hariri in addition to 22 other people. If the trial commences, this would be the first trial in absentia since the prosecution of Nazis during the Nuremberg trials.

In October, a judge for the STL asked [JURIST report] that the Trial Chamber initiate proceedings in absentia. 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 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 a resolution to establish an ad hoc international tribunal to investigate and try suspects in the assassination of Hariri.




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US Army soldier convicted of murdering Afghanistan civilians
Brandon Gatto on November 11, 2011 11:00 AM ET

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[JURIST] A US military court on Thursday convicted an army squad commander of three counts of premeditated murder for leading a "kill team" in Afghanistan that targeted unarmed civilians and collected body parts as war trophies. While three of the four defendants pleaded guilty and received reduced sentences, Sgt. Calvin Gibbs [NYT profile], 26, was given a life sentence for 15 convictions including murder, assault and conspiracy connected to the killing of three men not long after he took over the Fifth Brigade of the US Army [official website] Second Division in Afghanistan's Kandahar province in November 2009. Gibbs admitted to cutting and keeping fingers from the corpses as trophies, but claimed that he was merely returning enemy fire and was not motivated to kill. Prosecutors, however, relied on Gibbs' own likening of collecting amputated body parts to the antlers of a deer to characterize the platoon leader as a hunter who killed Afghans "for sport." Two co-defendants testified against their former leader, and told the court that Gibbs not only collected fingers and teeth from those he called "savages," but that he also took pictures next to the victims before leaving weapons around their bodies. While Gibbs has been given a life sentence, the court also granted the possibility of parole after less than 10 years.

Although the "kill team" incident has been considered one of the worst examples of American war crimes since the start of the Afghanistan campaign, other crimes have been alleged. In September 2010, former UN special rapporteur on extrajudicial, summary or arbitrary executions Philip Alston [JURIST news archive] called for an investigation [JURIST report] into the conduct by both Taliban and US and British military forces, and expressed particular concern over the number of civilian deaths during the war in Afghanistan. At the time, Alston made specific reference to the alleged killings revealed [JURIST report] in secret military files published by WikiLeaks [website]. The latter has been described as the largest unauthorized release of classified documents in US military history allegedly littered with US war crime evidence.




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Uganda man sentenced to 30 years for killing gay rights activist
Sarah Posner on November 11, 2011 10:39 AM ET

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[JURIST] The Ugandan High Court [official website] on Thursday sentenced a man to 30 years in prison for beating to death prominent gay rights activist David Kato. Enock Nsubuga confessed to the January 2011 killing, admitting to beating Kato [Reuters report] with a hammer at his home before he died on the way to the hospital. Nsubuga claimed that he attacked Kato in response to sexual advances he made. The case sparked worldwide criticism and drew attention to gay rights in Uganda. Homosexuality remains a controversial issue in much of Africa, with 37 countries in the continent, including Uganda, having laws making homosexuality illegal. Uganda has been harshly criticized throughout the international community since the introduction [BBC report] in October 2009 of its Anti-Homosexuality Bill [text, PDF], which stalled in the Parliament. The legislation would have made "aggravated homosexuality" punishable by death. In Uganda, it is a common belief that homosexuality is both un-Christian and un-African.

In January, the Ugandan High Court issued a permanent injunction [JURIST report] and awarded damages to plaintiffs who were alleged to be homosexuals by the Ugandan tabloid newspaper, The Rolling Stone. The complaint was filed by Uganda's Civil Society Coalition on Human Rights and Constitutional Law [advocacy website] on behalf of three members who, along with 97 other individuals, were alleged to be homosexuals in an article published by the tabloid under the headline "Hang Them" in October 2010. In January 2010, UN High Commissioner for Human Rights Navi Pillay said the Anti-Homosexuality Bill was discriminatory [JURIST report] and could harm Uganda's reputation internationally. Additionally, in February, US President Barack Obama and Secretary of State Hillary Clinton denounced the proposed legislation [JURIST report], which would implement harsh punishments for homosexual behavior, including the death penalty in some circumstances.




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HRW urges Tunisia not to extradite former Libya PM
Hillary Stemple on November 11, 2011 8:40 AM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] on Wednesday urged the Tunisian government not to extradite [statement] former Libyan prime minister Al-Baghdadi Ali al-Mahmoudi [BBC backgrounder; JURIST news archive], warning that he would be "at a real risk for torture" if he is returned to Libya. Al-Mahmoudi, who served under Muammar Gaddafi [BBC obituary; JURIST news archive], has been held in Tunisia since September when he was detained [JURIST report] while attempting to illegally enter Tunisia. Earlier this month the Tunisian courts announced they would review a request [JURIST report] by the Libyan National Transitional Council (NTC) [official website] to extradite al-Mahmoudi back to Libya in order to face possible charges of corruption. A Tunisian appellate court ruled earlier this week that al-Mahmoudi should be extradited back to Libya [JURIST report], despite concerns expressed by his lawyer for his safety. HRW stated that because Tunisia ratified the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [materials] they are subject to its terms, including Article 3, which prohibits the extradition of suspects to countries where torture is a real possibility. According to HRW, the NTC cannot guarantee al-Mahmoudi's safety due to their lack of adequate control over security forces and Libyian detention facilities. HRW cited examples of recently documented cases of mistreatment [HRW report] in Libyan detention facilities as examples of what al-Mahmoudi could face if he is returned to Libya. HRW further asserts that because the NTC has yet to establish a functioning judicial system, al-Mahmoudi would not be guaranteed basic rights of due process. In order for al-Mahmoudi's extradition to be effective, Tunisia's president must sign a decree ordering his return to Libya. Al-Mahmoudi could contest that order through the administrative process, but the extradition would still take place.

Al-Mahmoudi's extradition is the latest legal episode in an ongoing effort by Libyan and international courts to investigate officials in Gaddafi's government [JURIST report]. In June, the International Criminal Court (ICC) [official website] issued arrest warrants [decision, PDF; JURIST report] for Gaddafi, as well as two high-ranking officials in his regime, for crimes against humanity. ICC chief prosecutor Luis Moreno-Ocampo [official website] declared before the Pre-Trial Chamber that his office had obtained direct evidence [JURIST report] that shows Gaddafi personally ordered attacks on civilian protesters and that his army used live ammunition on crowds, fired at people in funeral processions, and placed snipers to shoot people leaving mosques after prayer services. Earlier in June, the UN Human Rights Council (UNHRC) [official website] decided to extend its investigation [JURIST report] of human rights abuses in Libya. In a 92-page report [text, PDF], the UNHRC declared that Gaddafi's regime committed murder, rape, torture, and forced disappearance "as part of a widespread or systematic attack against a civilian population with knowledge of the attack."




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DC Circuit overturns release of Guantanamo detainee
John Paul Putney on November 11, 2011 7:49 AM ET

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[JURIST] The US Court of Appeals for the District of Columbia Circuit [official website] on Wednesday released a partially redacted opinion [PDF] in Latif v. Obama, overturning the release order [JURIST report] for Yemeni Guantanamo detainee Adnan Farhan Abdul Latif [NYT profile]. The redaction at times covers entire sections, but reveals strong divisions between the deciding judges. The unredacted portion of the majority opinion largely focuses on the district court's failure to afford the evidence of the government—intelligence reports—a presumption of regularity. The majority opines there is confusion over the application of the presumption stemming from:
the fact that intelligence reports involve two distinct actors—the non-government source and the government official who summarizes (or transcribes) the source's statement. The presumption of regularity pertains only to the second: it presumes the government official accurately identified the source and accurately summarized his statement, but it implies nothing about the truth of the underlying non-government source's statement. ... The presumption of regularity—to the extent it is not rebutted—requires a court to treat the Government's record as accurate; it does not compel a determination that the record establishes what it is offered to prove.
The majority asserts the presumption is provided for in Boumediene v. Bush [opinion text] and regularly applied by courts in the context of federalism. In the absence of an explicit finding of credibility regarding Latif's "plausible alternative story" by the district court judge, the presumption stood firm. In sharp contrast, the dissent accuses the majority of deviating from a "highly deferential clear error review" and in evaluating the evidence (which it finds unreliable), it "moves the goal posts" by applying a "new presumption and then proceeding to find that it has not been rebutted." This, the dissent asserts, eviscerates the "meaningful opportunity" guaranteed by Boumediene. The case was remanded to district court to reconsider the evidence in light of the "presumptively reliable government evidence."

Federal courts have struggled with habeas corpus rights for Guantanamo detainees. In May, the DC Circuit affirmed [JURIST report] a lower court's decision that Yemeni Guantanamo Bay detainee Musa'ab Omar al-Madhwani is lawfully detained for being part of al Qaeda. In March, the DC Circuit overturned [JURIST report] a lower court's decision granting release to Yemeni Guantanamo detainee Uthman Abdul Rahim Mohammed Uthman. In September 2010, Kuwaiti Guantanamo detainee Fawzi Khalid Abdullah Fahad al Odah petitioned [JURIST report] the US Supreme Court [official website] to reverse a federal appeals court decision that denied him habeas corpus relief, but the Supreme Court turned down his appeal in April.




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Croatia ex-PM pleads not guilty to additional corruption charges
Alexandra Malatesta on November 10, 2011 2:08 PM ET

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[JURIST] Former Croatian prime minister Ivo Sanader [JURIST news archive] pleaded not guilty on Thursday to taking bribes worth €10 million from Hungarian energy group MOL in exchange for allowing MOL a dominant position in Croatia's oil and gas group INA [corporate websites]. Hernadi and MOL have also denied the allegations [AP report] that Sanader capitalized on the country's difficult position for personal gain. Sanader stands accused [Reuters report] of corruption, abuse of power and fraud for taking nearly €4 million [JURIST report] from public firms and state institutions in the 1990s, charges which he has denied. Croatia'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 also pleaded not guilty [JURIST report] last week to charges that he accepted a bribe in 1995, claiming he was only an agent for the foreign ministry during talks with Hypo Bank.

Sanader's trial is the first criminal proceeding prompted by EU pressure for Croatia to crack down on corruption. Sanader's trial was postponed [JURIST report] last month for health reasons. Elected to parliament after he stepped down from the prime minister position in 2009, Sanader was indicted in September as part of an anti-corruption campaign launched his hand-picked successor Jadranka Kosor [official profile]. Croatia is close to achieving membership in the European Union (EU), and Kosor hopes Sanader's trial will help ease pressure from Brussels for Croatia to sort out corruption and speed investigations. Sanader was extradited [JURIST report] to Croatia in July in order to face these charges after he was arrested in Austria last December. Sanader had argued that it would be impossible to receive a fair trial in Croatia, but he dropped his stance after media speculation [JURIST report] suggested the appeal could harm EU Croatia's accession. The Kosor government completed accession talks with the EU in June, and is hoping to join in July 2013.




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Senate committee votes to repeal DOMA
Alexandra Malatesta on November 10, 2011 1:37 PM ET

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[JURIST] The US Senate Judiciary Committee [official website] on Thursday voted to repeal the Defense of Marriage Act (DOMA) [text; JURIST archive], marking the first time a Congressional group has voted to repeal the law banning same-sex marriage. The vote was split along party lines, with 10 Democrats voting in favor of the legislation and eight Republicans voting in opposition. Committee Chair Patrick Leahy emphasized that the Respect for Marriage Act (ROMA) [text] would guarantee equal treatment for all lawful marriages and extend federal benefits to same-sex couples even if they move into states that do not recognize same-sex marriage. ROMA has also garnered support [Washington Blade report] from President Barack Obama [official profile] who has also decried DOMA as discriminatory, pledging he would continue to fight for its repeal [JURIST report]. In an attempt by Democrats to send a message to their political base [AP report], the bill may proceed to the Senate floor, but is likely to fail because it has significantly fewer co-sponsors than is needed to overcome a Republican filibuster. It is also unlikely that the repeal legislation will pass the Republican-controlled House of Representatives [official website]. Courage Campaign [advocacy website] chair and founder Rick Jacobs thanked the Judiciary Committee [press release] for their vote. Meanwhile, national polls suggest that a slight majority of Americans favor allowing same-sex couples to marry.

Members of the House of Representatives Bipartisan Legal Advisory Group defended DOMA in a filing [text, PDF] in October in the US District Court for the Northern District of California [official website]. The group contends that 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. Even though the Obama administration has stopped defending the constitutionality of DOMA [JURIST report], benefits continue to be denied. Last month, 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. In February, congressional Democrats introduced the Respect for Marriage Act, which was intended to repeal DOMA [JURIST report].




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Brazil court approves controversial dam construction
Dan Taglioli on November 10, 2011 12:45 PM ET

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[JURIST] A Brazilian federal court ruled Wednesday that work on a dam [Belo Monte backgrounder] being constructed on the Xingu River in the Amazon jungle may continue. The Federal Court of the First Region [official website, in Portuguese] had ordered that dam construction cease [JURIST report] until indigenous groups are consulted and given access to environmental impact reports, but the court reversed that decision in a 2-1 vote [AP report], upholding the decree issued by Para state authorizing the dam's construction. Maria do Carmo Cardoso, a court judge, held that the indigenous communities are entitled to be consulted, but the law does not say that this must be done before approval of the work [AFP report]. When completed the $11 billion, 11,000-megawatt dam will be the world's third largest behind China's Three Gorges dam and the Itaipu, which straddles the border of Brazil and Paraguay. The project is expected to employ 20,000 people directly in construction, flood an area of 500 square kilometers (200 square miles) along the Xingu river and displace 16,000 persons. Environmentalists and indigenous groups say the dam will devastate wildlife and the livelihoods of as many as 40,000 people who live in the area to be flooded. The government says the dam will provide clean, renewable energy and is essential to fuel the South American country's growing economy. The federal prosecutors' office in Para plans to appeal the ruling to the Supreme Court.

Last month JURIST Guest Columnist Pedro Sousa [official profile, in Portuguese] of Carneiro de Almeida & Pires Advogados wrote [JURIST comment] that the Belo Monte dam violates the constitutional mandate to protect indigenous peoples and the environment. In September the Malaysian Federal Court [official website] unanimously ruled against indigenous people [JURIST report] challenging a similar hydroelectric dam. The indigenous people argued that they received inadequate compensation for the Sarawak government's seizure of their land to build the dam. The judges stated that if the plaintiffs were not satisfied with the amount of compensation then that is a matter for arbitration, not for the court. In December 2010 the US government pledged to support the UN Declaration on the Rights of Indigenous Peoples [JURIST report], a non-binding UN treaty expressing support for the rights of indigenous peoples. The US was the last member to lend its support to the treaty. In August of that year UN Secretary General Ban Ki-moon [official website] called on governments to improve the living conditions of indigenous peoples [JURIST report] and support the UN Declaration on the Rights of Indigenous Peoples.




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Israel Supreme Court upholds ex-president's rape conviction
Katherine Getty on November 10, 2011 12:24 PM ET

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[JURIST] The Supreme Court of Israel [official website, in Hebrew] on Thursday upheld the rape conviction of former Israeli president Moshe Katsav [BBC profile]. The court rejected [AP article] Katsav's appeal of his conviction for rape, sexual abuse and sexual harassment, finding that he misused his position as president, from which he was forced to resign after the allegations were made public. The unanimous decision by the three-judge panel ended the ordeal that began in 2006. Katsav has consistently denied the charges, and his lawyer took issue with the court's decision, calling into question the credibility of the victim's testimony. The confirmation of the conviction is seen widely in Israel as a victory for women's rights and an enticement for rape victims to come forward. Katsav is expected to begin serving his seven-year sentence December 7, although his lawyers said they would study the ruling and decide whether to seek another trial before a different Supreme Court panel.

Katsav's appeal began in August after he submitted a 300-page document [JURIST reports] following his conviction and sentencing. His sentence was delayed [JURIST report] in May pending the outcome of this decision. Katsav was convicted in December 2010 after rejected a controversial plea bargain [JURIST reports]. The indictment came down in March 2009 in response to the original allegations [JURIST reports] levied in 2006.




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Mexico security forces committing rights abuses: HRW
Matthew Pomy on November 10, 2011 12:08 PM ET

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[JURIST] Mexican security forces have committed widespread rights abuses [press release], such as torture and forced disappearances, in combating organized crime, according to a report [text, PDF] released Wednesday by Human Rights Watch (HRW) [advocacy website]. The report, "Neither Rights Nor Security," details HRW's investigation into the actions of the Mexican military and police forces in confronting drug cartels and the escalation in violence that has occurred since President Felipe Calderon declared war on organized crime [AP report] in 2006. The investigation began two years ago with HRW sending investigators to five of Mexico's most violent states. In the course of their investigation, HRW found evidence of security forces committing "170 cases of torture, 39 'disappearances,' and 24 extrajudicial killings." HRW summarized its findings:
What we have found is a public security policy that is badly failing on two fronts. It has not succeeded in reducing violence. Instead, it has resulted in a dramatic increase in grave human rights violations, virtually none of which appear to be adequately investigated. In sum, rather than strengthening public security in Mexico, Calderon "war" has exacerbated a climate of violence, lawlessness, and fear in many parts of the country.
HRW claims that not only have the security forces been committing these rights abuses, but that the government has failed to adequately investigate claims of abuse. In addition, the report notes that these rights abuses not only undermine the rule of law, but can also be counterproductive to the operation by causing an escalation of violence and a loss of legitimacy in the eyes of the public.

The HRW report comes in response to widespread violence in Mexico in the fight against drug cartels. This is not the first time the security forces have been accused of committing rights abuses. In August, Mexico's National Human Rights Commission [official website, in Spanish] issued a report [text, PDF, in Spanish] contending that military and law enforcement officials routinely conducted illegal searches [JURIST report]. Mexico has struggled to combat the drug cartels' influence on the government and the country as a whole. There have been more than 27,000 drug-related deaths [STRATFOR report] since 2006. In 2008, a former Assistant Attorney General was arrested for receiving bribes and Mexico's prosecutor's office admitted that it had been infiltrated [JURIST reports] by the drug cartels.




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Ninth Circuit ends legal challenge to 'Don't Ask Don't Tell'
Dan Taglioli on November 10, 2011 11:49 AM ET

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[JURIST] The US Court of Appeals for the Ninth Circuit [official website] Wednesday denied a petition for rehearing [order, PDF] regarding its unanimous decision to vacate a district court ruling that the "Don't Ask, Don't Tell" policy (DADT) [10 USC § 654; JURIST backgrounder] was a violation of service members' constitutional rights. The court had overturned the lower court's ruling [JURIST report] at the request of lawyers for the US Department of Justice (DOJ), who argued that the recent Congressional repeal of DADT had rendered the original court case moot [JURIST reports]. The Log Cabin Republicans (LCR) [advocacy website], the gay rights group that sued over the policy, urged the appeals court to uphold the ruling to prevent the government from banning gay military service in the future:
The panel's sweeping, and unnecessary, vacatur order eradicates over a dozen thoughtful district court rulings, including factual findings after a full bench trial. It not only condemns any future servicemember who may claim injury from an unconstitutional discharge under DADT to re-litigate the entire factual basis for this lawsuit, at an enormous cost in judicial resources, but it calls into public question the very validity of the proceedings below, which were held and concluded before the Repeal Act was enacted. Resolution of these issues is vital to public confidence in the adequacy, transparency, and correctness of the judicial process.
The Ninth Circuit vacated the district court's decision on the grounds that "the Supreme Court and our court have repeatedly held that a case is moot when the challenged statute is repealed, expires, or is amended to remove the challenged language." The Don't Ask, Don't Tell Repeal Act of 2010 [HR 2965 materials] took effect on September 20 [JURIST report].

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




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Australia Senate passes law banning cigarette brand labels
Michael Haggerson on November 10, 2011 11:17 AM ET

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[JURIST] The Australian Senate [official website] on Thursday passed the Tobacco Plain Packaging Bill 2011 [text, PDF; materials] which requires that cigarettes be sold in generic olive green packages, without brands or logos. The packages will also have warnings of the potential health risks of smoking. Australia is the first country in the world [BBC report] to pass a law such as this. The bill will now go to the lower house of parliament where it is expected to be passed. Tobacco companies have announced that they plan to challenge the law.

Tobacco packaging is at issue in the US as well. Earlier this week a judge for the US District Court for the District of Columbia [official website] granted a temporary injunction to block the implementation [JURIST report] of new requirements of graphic image and textual warning labels imposed by the Family Smoking Prevention and Tobacco Control Act (FSPTCA) [HR 1256 text]. In 2009, US President Barack Obama [official website] signed the FSPTCA into law [JURIST report], granting the FDA certain authority to regulate tobacco products. The legislation heightens warning-label requirements, prohibits marketing "light cigarettes" as a healthier alternative and allows for the regulation of cigarette ingredients.




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Alleged USS Cole bomber makes first court appearance
Michael Haggerson on November 10, 2011 10:27 AM ET

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[JURIST] Alleged al Qaeda senior leader Abd al-Rahim al-Nashiri [NYT profile; JURIST news archive] made his first court appearance [materials] Wednesday, his first public appearance since he was captured in Dubai in 2002. Nashiri is charged with war crimes [NYT report] under the Military Commission Act of 2009 [text, PDF] relating to the bombing of the USS Cole in 2000 which killed 17 men, the bombing of the MV Limburg in 2002 and a failed plot to attack an American warship, The Sullivans, in 2000. Nashiri declined to enter a plea Wednesday. Counsel for Nashiri apparently plans to argue that evidence is unreliable due to the torture Nashiri endured, is circumstantial and is hearsay. Even if Nashiri is convicted, his defense will likely argue that the death penalty is inappropriate because of the mitigating factor that he was tortured while in US custody. Nashiri allegedly endured being threatened with a power drill during a mock execution, having threats levied against mother and waterboarding while in US custody. The defense will also challenge the jurisdiction of the military commission. Military commissions are only permitted to try war crimes committed during armed conflict, but both the bombing of the USS Cole and the attempted bombing of The Sullivans occurred before the Authorization to Use Military Force [text, PDF] after 9/11 [JURIST news archive]. Critics contend that Nashiri and other Guantanamo detainees should be tried in federal district court [Huffington Post report] rather than military commissions because the federal courts do not have the jurisdictional issues and the relaxed evidentiary requirements that the military commissions have.

Nashiri has been at the center of controversy for many years. In May, lawyers for Nashiri filed suit against Poland [JURIST report] over his supposed torture in a secret CIA prison [JURIST news archive] in the country. In 2007, Nashiri declared that his confession to orchestrating the USS Cole bombing was elicited under torture [JURIST report]. 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.




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Supreme Court hears arguments on preemption
John Paul Putney on November 10, 2011 9:01 AM ET

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[JURIST] The US Supreme Court [official website] heard oral arguments [day call, PDF] Wednesday in two cases on preemption. In National Meat Association v. Harris [transcript, PDF; JURIST report], the court considered where the federal regime of slaughterhouse regulation as established by the Federal Meat Inspection Act ("FMIA") [text], as amended by the Wholesome Meat Act of 1967 and the Humane Methods of Slaughter Act preempted a subsequent California law imposing additional and arguably contrary requirements. The petitioner argued that "there is no way ... to say that California law can be interpreted in a way that will not tell a Federal slaughterhouse what to do and—and how to do it with respect to nonambulatory animals." The Solicitor General, in support of the petitioner, took a slightly different position on whether state regulations regarding the formation of sales contracts would also be preempted: "the ban on buying is nothing, is nothing but doing in two steps what the State clearly can't do in one step, which is tell slaughterhouses how they are to deal with an animal that is on their premises. At least they can't—States can't tell slaughterhouses how to do that when there is a Federal regulation on the subject. The respondent drew a line between the purpose of the federal regulation and the California statute:
The scope are [sic] the mandates of Federal law dealing with the method, quality, and marketing of turning animals into meat for human consumption. ... None of the provisions are within the scope because California is not regulating animals that are going to be turned into meat. And the Federal Meat Inspection Act, the purpose of the act, the legislative history of the act show, that the scope of the act is concerned with animals that are going to become meat.
The court seemed skeptical that there was no overlap in purpose whatsoever.

In Kurns v. Railroad Friction Products Corp. (RFPC) [transcript, PDF; JURIST report], the court considered whether state court products liability claims relating to the death of an individual exposed to asbestos were preempted by the Locomotive Inspection Act (LIA) [49 USC § 20701]. The petitioner was exposed and subsequently passed away after working on the braking system of trains which contained asbestos. Petitioner urged the court to construe the Inspection Act narrowly (as applying to the safety of locomotives in use on railroad lines and not applying to hazards to mechanics conducting repairs) because

in 1970 Congress expressly and comprehensively legislated in the Federal Rail Safety Act and provided a conflict preemption regime in which if a State had a rule in place that rule would be permitted to survive unless and until the Federal Rail Administration issued a regulation. And there has never been a regulation on asbestos. ... [W]hat [respondent is] seeking to do is to take the doctrine of implied field preemption, gain immunity from State law liability and not be subject to any Federal rules. And it's that proposition that is an extraordinary proposition of implied field preemption.
The Solicitor General, supporting the petitioner, argued that LIA's application is limited by its own language which purports to regulate locomotives for safe use—"safe for use on the line"—on lines of interstate commerce. The respondent relied on Napier which construes the LIA as delegating exclusive authority to the DOT to "determine the design and the materials of locomotive equipment", even where a State may regulate for a different purpose, because the statute says safe for use on—"safe for use on the line." It's safe for use on lines of interstate commerce. In other words, "regulatory power is broader than purpose."




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UN SG calls for universal accession to treaty banning indiscriminate weapons
John Paul Putney on November 10, 2011 7:58 AM ET

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[JURIST] UN Secretary General Ban Ki-moon [official profile] called Wednesday for universal accession [statement] to the Protocol II on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol II) [text, PDF]. The comments came as part of the secretary's message to the 13th Annual Conference on Protocol II. Congratulating the 97 States already party to Protocol II, the secretary reiterated his call to implement the Plan of Action to Promote the Universality of the Convention:
Landmines, booby-traps and other explosive devices aggravate and prolong the horrendous consequences of armed conflict. Both during and after hostilities, they kill indiscriminately, maim vulnerable civilians and cause excessive, yet random, suffering of combatants. Since its inception, the Protocol has helped shape global efforts to eliminate that scourge. ... Furthermore, evidence provided years ago by members of the United Nations Mine Action Team indicates the need to strengthen international rules applicable to mines other than anti-personnel mines. ... Universalizing the Protocol remains as important as ever.
Protocol II was amended in 1996, expanding its application to international and domestic conflicts [UN News Centre report] and banning the use of non-detectable anti-personnel mines as well as non-self-destructing and non-self-deactivating mines not in marked, fenced and monitored areas.

The call to universalize the treaty is not the first. In November 2010, Human Rights Watch (HRW) [advocacy website] urged the US to become a state party [JURIST report] to the Mine Ban Treaty [text], repeating a plea made in March [JURIST report]. The calls came after the US State Department [official website] stated in November 2009 that the US will not be signing the treaty [JURIST report] to ban the use of anti-personnel landmines. In April 2007, Ban urged all countries to sign [JURIST report] and abide by international treaties banning landmines International Mine Awareness Day.




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Latin American countries join DOJ in South Carolina immigration law challenge
Jerry Votava on November 9, 2011 1:43 PM ET

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[JURIST] Sixteen Latin American, Caribbean and South American governments have filed supporting briefs in a lawsuit filed last week [JURIST report] by the US Department of Justice (DOJ) [official website] challenging the South Carolina's newly adopted immigration law [SB 20 text]. The briefs contend that the new law will "impede effective and consistent diplomatic relations," and encourage "an imminent threat of state-sanctioned bias or discrimination" of their citizens. The countries are also concerned about the detrimental effects the new law will have on trade and tourism. The briefs request that the court "preliminarily enjoin SB 20, and declare it unconstitutional in its entirety." The DOJ complaint [text, PDF] claims that the new legislation, which allows police officers to check a suspect's immigration status during a lawful stop, seizure, detention or arrest, and requires businesses to participate in the E-Verify [official website] system, creates a patchwork of state and local immigration policies that conflict with the policies and principles of the federal government. The department is requesting an injunction barring certain portions of the state law that would take effect on January 1.The governments that filed briefs are: Mexico, Argentina, Bolivia, Brazil, Chile, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Nicaragua, Paraguay, Peru, and Uruguay.

State responses to inadequate federal immigration law continue to create controversy. The South Carolina legislation was recently challenged [complaint, PDF] by a coalition of civil rights groups [JURIST report], including the American Civil Liberties Union (ACLU), the National Immigration Law Center (NILC) [advocacy websites] and others who claim it invites racial profiling and interferes with federal law. 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 [JURIST reports]. In August, the state of Arizona filed a petition for writ of certiorari [JURIST report] with the US Supreme Court 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.




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India court convicts 31 for crimes during Gujarat riots
Katherine Getty on November 9, 2011 12:18 PM ET

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[JURIST] A trial court in the West Indian state of Gujarat [official website] on Wednesday convicted 31 people of crimes committed during the 2002 Gujarat riots. The guilty were convicted [BBC report] of murder, arson and rioting while charges criminal conspiracy were dropped by the court. All 31 of the convicted were sentenced to life in prison and required to pay a fine. The court acquitted 42 other defendants. The riots stemmed [Times of India report] from anger over the death of 60 Hindus in a fire aboard a train. As a result of the casualties, riots broke out in Gujarat targeting Muslims who were blamed for starting the fire. The riots lasted three days and when they were over, more than 1000 people, mostly Muslims, were dead. Teesta Setalvad, an activist working on behalf of the riot victims said welcomed the sentences but expressed disappointment that the investigation team did not into the issue of conspiracy to riot. She said that she would speak to the victims' families about possible appeals in regards to those who were acquitted.

The trial comes two years after the National Human Rights Commission [official website] filed a case with the Supreme Court in which it took issue [press release] with the lack of prosecution in the case. The Supreme Court ordered [decision, PDF] an investigation into the conduct of the trial as well as the protection of witnesses. In 2004 Human Rights Watch [official website] issued a report [finding, PDF] urging witness protection for those involved in the case after allegations [JURIST report] of threats and pressure from the state arose.




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DRC urged to prevent rights violations linked to electoral process
Sung Un Kim on November 9, 2011 12:07 PM ET

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[JURIST] The UN Joint Human Rights Office (UNJHRO) [official website] on Tuesday urged the Democratic Republic of the Congo (DRC) government to take appropriate actions to successfully abolish election-related violence [report, PDF] before the upcoming presidential election on November 28. UNJHRO reported 188 cases of human rights violations related to the electoral process during the period between November 2010 and September 2011. The fundamental rights that were violated by governmental officials such as the National Congolese Police (PNC) [official website] included freedom of expression, freedom of association, right to peaceful assembly, right to life and physical integrity, right to liberty, and security of person. Numerous incidents reported involved PNC agents threatening, beating or arresting civilian who were merely wearing T-shirts of opposition parties. Such violations also extended to journalists and human rights defenders related to the upcoming elections:
The UNJHRO urges the Government to intensify its cooperation with civil society, to issue public messages calling for State agents, especially members of the security forces, to promote and respect human rights and to fight impunity of State agents responsible for human rights violations by holding them accountable. The UNJHRO calls upon the international community to step up its efforts to support the Government of the DRC, civil society, and other stakeholders in efforts to train security forces and judicial officers on fundamental freedoms. Political parties must also issue public statements promoting peaceful participation in the electoral process and specifically call upon their supporters, especially youth, to refrain from violence and incitement thereto, and to respect and promote national laws and public order.
The UNJHRO is concerned that since the pre-electoral period was marked by violence involving human rights violations, the incidents of violence will increase as political activities intensifies. The upcoming election will be the second democratic election that the DRC will have after its first election in 2006.

The DRC has faced numerous human rights violations in the past. In June, four policemen were sentenced [JURIST report] to death for killing a prominent human rights activist. In February, a military official and his subordinates were sentenced for mass rape [JURIST report] that occurred on New Year's Eve. In addition to human rights violations, the DRC faced some minor issues such as arresting [JURIST report] six election officials for ballot fraud but there has been no violence related to election reported.




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Tunisia court orders extradition of former Libya PM
Max Slater on November 9, 2011 11:58 AM ET

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[JURIST] A Tunisian appellate court ruled Tuesday that a Libyan senior official who served under Muammar Gaddafi [BBC obituary; JURIST news archive] should be extradited back to Libya. Al-Baghdadi Ali al-Mahmoudi [BBC backgrounder; JURIST news archive], Gaddafi's former prime minister, was ordered to be extradited following his conviction [BBC report] in September for illegally entering Tunisia. Mahmoudi's lawyer, Mabrouk Kourchid, complained [AFP report] that the Tunisian court gave no explanation for its decision to extradite his client, and that Mahmoudi fears for his life as the sole keeper of state secrets since Gaddafi's death [JURIST report] in October 20. Several members of the Gaddafi regime, including three of his sons, remain at large [Reuters report] and are wanted for trial in Libya.

Mahmoudi's extradition is the latest legal episode in an ongoing effort by Libyan and international courts to investigate officials in Gaddafi's government [JURIST report]. In June, the International Criminal Court (ICC) [official website] issued arrest warrants [decision, PDF; JURIST report] for Gaddafi, as well as two high-ranking officials in his regime, for crimes against humanity. ICC chief prosecutor Luis Moreno-Ocampo [official website] declared before the Pre-Trial Chamber that his office had obtained direct evidence [JURIST report] that shows Gaddafi personally ordered attacks on civilian protesters and that his army used live ammunition on crowds, fired at people in funeral processions, and placed snipers to shoot people leaving mosques after prayer services. Earlier in June, the UN Human Rights Council (UNHRC) [official website] decided to extend its investigation [JURIST report] of human rights abuses in Libya. In a 92-page report [text, PDF], the UNHRC declared that Gaddafi's regime committed murder, rape, torture, and forced disappearance "as part of a widespread or systematic attack against a civilian population with knowledge of the attack."




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ICC prosecutor may press additional charges against Libya intelligence chief, others
Ashley Hileman on November 9, 2011 10:44 AM ET

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[JURIST] International Criminal Court (ICC) [official website] Chief Prosecutor Luis Moreno-Ocampo [official profile] said Wednesday new charges may be warranted against those close to former Libyan leader Muammar Gaddafi [BBC obituary; JURIST news archive]. According to Ocampo, an investigation into the use of rape by Gaddafi forces [Reuters report] is nearly finished, and the results of this investigation may be used to file additional charges against Libya's chief of intelligence, Abdullah al-Senussi [warrants], among others. It has been alleged that al-Senussi was involved in the ordering and organizing of mass rapes. While al-Senussi is implicated in these new allegations, Gaddafi's son Saif al-Islam Gaddafi is not.

Last week, in a statement to the UN Security Council, Ocampo detailed the charges [JURIST report] against al-Senussi and Saif al-Islam as well as what is being done to secure their capture. Late last month, the two reportedly attempted to leave Libya in an effort to surrender themselves [JURIST report] to the ICC, according to the National Transitional Council (NTC) [official website]. Earlier in the month, Ocampo said that he has evidence against Saif al-Islam for his role in planning attacks on Libyan civilians [JURIST report]. According to Ocampo, Saif al-Islam hired mercenaries to assist him in carrying out his plans to attack civilians that protested the rule of his father. 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 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] in October.




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Ohio voters reject collective bargaining law in statewide referendum
Jamie Reese on November 9, 2011 10:20 AM ET

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[JURIST] Ohio voters on Tuesday rejected Senate Bill 5 [SB 5 text, PDF], which would have impacted Ohio's 400,000 public workers by limiting their ability to strike and collectively bargain for health insurance and pensions. It would have mandated that public workers pay 15 percent of their health insurance premiums and at least 10 percent of their salary to pensions. The proposed bill was strongly defeated with 61 percent [NPR report] of the votes placed to repeal the law and only six counties supporting the bill with a majority of votes. Ohio Governor John Kasich [official website] argues that the law was not an attempt to eliminate unions, but was aimed at restoring the balance and to help close the state's budget gap. Another proponent, Building a Better Ohio [advocacy website] argued that the law was necessary because public unions had grown too powerful and cuts were necessary for budget control [advocacy materials, PDF]. Conversely, advocacy group We Are Ohio [advocacy website] praised the election results, saying that the vote supported public employees [press release]. Kasich said he was unsure if he would try again to pass some aspects of SB 5.

The bill was passed in March, but was placed on referendum after opponents collected 915,456 signatures [JURIST reports] in July. Anti-union and anti-collective bargaining laws have been a major issue of controversy in the US this year. In July, a judge for the US District Court for the District of Idaho [official website] issued a preliminary injunction [JURIST report] blocking the enforcement of an Idaho anti-union law [SB 1007, PDF] that bans a union program that would subsidize employment for its members. In March, the New Hampshire House of Representatives [official website] passed an amendment to their current budget that would require public employees to make concessions automatically [AP report] or become at-will employees. Earlier in March, Wisconsin Governor Scott Walker [official website] signed a bill [JURIST report] limiting the rights of state workers to collectively bargain. Although the law was enjoined by judicial order, it has since been upheld [JURIST report] by the Wisconsin Supreme Court [official website].




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Ohio voters approve amendment prohibiting health care mandate
Jaimie Cremeans on November 9, 2011 9:59 AM ET

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[JURIST] Citizens of Ohio voted Tuesday with a 65 percent majority to pass Proposition 3 [text, PDF], an amendment to the Ohio Constitution [PDF] which mandates that no rule or law can compel people, employers or health care providers in their state to "participate in a health care system." It also holds that "purchase or sale of health care or health insurance" cannot be prohibited and outlaws imposition of penalties or fines for buying or selling health care or insurance. The amendment will take effect in 30 days. Proponents of the proposal claim it will bar government from controlling their health care options, help protect the health care industry from government regulations [SOS materials, PDF] that hurt its effectiveness and save jobs in the health care. Opponents claim that it will prevent the government from imposing regulations that could lower health care costs [SOS materials, PDF] and ensure that low-income citizens and citizens with preexisting conditions are not excluded from obtaining health insurance.

The proposition was a response to the 2009 Patient Protection and Affordable Care Act (PPACA) [HR 3590 text; JURIST backgrounder], which requires all Americans buy some form of health care coverage. The health care law's constitutionality has been challenged in multiple lawsuits. Last month, the American Center for Legal Justice (ACLJ) [advocacy website] and 105 members of Congress filed an amicus brief [JURIST report] with the US Supreme Court [official website], urging the court to take up a Florida case challenging the law. In September, 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 Supreme Court is likely to rule on the issue next summer.




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ICTY prosecutor requests help in finding those responsible for hiding war criminals
Ashley Hileman on November 9, 2011 9:49 AM ET

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[JURIST] International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] prosecutor Serge Brammertz [official profile] on Tuesday requested assistance from Serbian authorities to determine who helped certain war criminals remain undetected for many years. Specifically, Brammertz seeks to discover [AP report] who assisted former Serbian general Ratko Mladic [ICTY backgrounder, PDF; JURIST news archive], who evaded authorities for 16 years and former Croatian Serb rebel leader Goran Hadzic [ICTY backgrounder], who remained on the run for seven. Both were wanted as a result of allegations of atrocities they committed during the Bosnian civil war [JURIST news archive]. Brammertz made his request while on a visit to Belgrade, were he will deliver a report to the UN Security Council [official website] regarding Serbia's compliance with the tribunal.

Last month, Brammertz said that he would not appeal the court's decision to proceed with a single trial [JURIST report] for Mladic. 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. The court denied [press release] the prosecutor's request on the grounds that separating the trials would be inefficient and could prejudice Mladic and unduly burden witnesses. Brammertz had argued that splitting the trials was warranted [AP report] because Mladic's health may decline over the course of the trial. Mladic was hospitalized [JURIST report] earlier in the month, allegedly due to pneumonia. Serbian authorities captured Mladic [JURIST report] in May, ending a 16-year manhunt. In August, Hadzic entered a not guilty plea to the charges against him after refusing to enter a plea in July following his extradition to the Hague. [JURIST reports].




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US hedge fund founder ordered to pay record penalty for insider trading
Jamie Davis on November 9, 2011 9:39 AM ET

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[JURIST] The US District Court for the Southern District of New York [official website] Tuesday ordered Galleon Group hedge fund founder Raj Rajaratnam [WSJ archive] to pay an unprecedented civil penalty for insider trading. In a thorough analysis of the appropriate amount of the fine, Judge Jed Rakoff handed down a $92.8 million penalty [opinion, PDF] in the culmination of a civil lawsuit against Rajaratnam brought by the Securities and Exchange Commission (SEC) [official website]. The penalty is the largest fine ever imposed on an individual in an SEC insider trading case. Rakoff summarized the state of the law:
SEC civil penalties, most especially in a case involving such lucrative misconduct as insider trading, are designed, most importantly, to make such unlawful trading "a money-losing proposition not just for this defendant, but for all who would consider it, by showing that if you get caught ... you are going to pay severely in monetary terms."
By statute the court is empowered to "impose a penalty of up to, but no more than, 'three times the profit gained or the loss avoided.'" Rakoff reasoned that Rajaratnam's fortune was considerably more than the fines imposed on him as a result of his criminal convictions and felt the punishment should be relative the the one-time billionaire's net-worth, intentionally depriving Rajaratnam of a "material part of his fortune." Rajaratnam has already been ordered to pay a $10 million fine and forfeit $53.8 million in profits since he was convicted [JURIST report] of insider trading in May.

Rajaratnam was sentenced to 11 years in prison [JURIST report] last month after he was convicted of orchestrating the largest insider trading case in US history. The jury found him guilty of nine counts of securities fraud and five counts of conspiracy to commit securities fraud, and others have been implicated in the insider trading scheme with Rajaratnam. Danielle Chiesi pleaded guilty in January and settled with the SEC [JURIST reports] in July. Former IBM senior vice president Robert Moffat was sentenced to six months in prison last September and was ordered 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. 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.




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Mississippi voters pass ballot initiative restricting eminent domain
Dan Taglioli on November 9, 2011 8:34 AM ET

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[JURIST] Mississippi voters on Tuesday overwhelmingly approved an amendment to the state constitution limiting the power of eminent domain [Cornell LII backgrounder] in the state. The approved measure [initiative, PDF] would prohibit, with certain exceptions, state and local government from conveying acquired private property to other persons or private businesses for a period of 10 years after acquisition. The process of filing and completing eminent domain proceedings is not affected by the initiative, as its restrictions have no effect until acquired property is vested with the condemnor:
No property acquired by the exercise of eminent domain under the laws of the State of Mississippi shall, for a period of ten years after its acquisition, be transferred or any interest therein transferred to any person, non-governmental entity, public-private partnership, corporation, or other business entity ...
However, the prohibition would not apply to certain exercises of eminent domain, including where public nuisance, structures unfit for human habitation or abandoned property are concerned. Additional exceptions to the prohibition include drainage and levee facilities, roads, bridges, ports, airports, common carriers and utilities. To place this initiative on the ballot in Mississippi required 30,006 signatures, and 119,251 signatures were in fact collected. The measure was approved in the general election with nearly three-fourths of the vote.

The power of the government to take private property and convert it into public use is a doctrine long held. States can enact limitations on government takings to further citizen protections flowing from the Fifth Amendment. Last year voters in Nevada rejected a ballot initiative [JURIST report] that would have expanded state power by defining five exceptions to an existing general prohibition against exercising eminent domain to transfer property from one private party to another. The restriction on the state's ability to use eminent domain to acquire private property was approved by voters through a ballot initiative in 2008, which was originally voted on in 2006 [JURIST reports]. In 2009 Texas voters approved an initiative [JURIST report] to prohibit government officials from taking private property and allotting it to private buyers for the purpose of economic development or to increase tax revenues unless the property owner consents. The Texas measure further limited government ability to enforce eminent domain by requiring approval of two-thirds of the bicameral legislature. New Jersey limited the exercise of eminent domain [JURIST report] in 2007, although it was through the New Jersey Supreme Court [official website] rather than a ballot initiative. The Connecticut legislature approved eminent domain restrictions [JURIST report] in the same year. During the 2006 mid-term elections voters in nine states approved ballot initiatives [JURIST report] restricting the use of eminent domain.




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DC Circuit upholds constitutionality of health care law
Brandon Gatto on November 9, 2011 8:14 AM ET

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[JURIST] The US Court of Appeals for the District of Columbia Circuit [official website] issued a ruled [text] 2-1 on Tuesday to uphold the constitutionality of the Patient Protection and Affordable Care Act (PPACA) [HP 3590 text; JURIST news archive]. Senior Circuit Judges Laurence Silberman in his opinion affirmed that Congress did not overstep its Article One [text] constitutional authority by requiring citizens to buy health insurance or pay a penalty on their taxes. The lawsuit, brought by the American Center for Law and Justice [advocacy website], claimed that the mandate unlawfully forces Americans to purchase a product for as long as they live, and that it also offends the First Amendment [text] religious freedoms of those who choose to rely on God for protection rather than purchased insurance. The court dismissed this argument. Judge Silberman cited several past federal mandates to support the majority:
It certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race ... or that a farmer cannot grow enough wheat to support his own family. ... The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local—or seemingly passive—their individual origins.
Although Judge Brett Kavanaugh disagreed with the majority, his opinion does not take a position based on merits of the law. Rather, the dissent contends that the court lacks and will continue to lack jurisdiction to review the PPACA until the date of its effect in 2014.

This latest decision regarding the constitutionality of the PPACA's individual mandate is perhaps yet another step toward the law's ultimate fate in the US Supreme Court [official website]. As of now, there are three health care appeals pending before the court. In October, both the state of Virginia and Liberty University appealed a ruling [JURIST report] made by the US Court of Appeals for the Fourth Circuit [official website] that rejected all claims based on a lack of standing. Shortly before that, in September, the US Department of Justice (DOJ) along with 26 individual states asked the court to review a ruling by the US Court of Appeals for the Eleventh Circuit [official website], which asserted that the PPACA's individual mandate is unconstitutional [JURIST report], but that the remainder of the act is not. While the US Court of Appeals for the Sixth Circuit [official website] upheld the PPACA's individual mandate in June, the decision was also appealed [JURIST reports] to the Supreme Court by the Thomas More Law Center.

For more information, see JURIST's feature on Health Care Reform.




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Mississippi passes voter ID requirement
Julia Zebley on November 9, 2011 7:27 AM ET

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[JURIST] Mississippi voters on Tuesday approved the Mississippi Voter Identification Petition [materials] by 62 percent, creating a new requirement that voters show government-issued photo identification at the polls. The ballot included a disclaimer [referendum brochure text, PDF] explaining a government-issued photo identification costs approximately $14. Several rights groups, including the American Civil Liberties Union of Mississippi (ACLU-MS) and the Mississippi National Association for the Advancement of Colored People (NAACP) [advocacy websites] have stated this amounts to a "poll tax." Although the law allows for an ID to be issued for free if the person doesn't have one, the re-issuance of essential documents for that, such as birth certificates or Social Security cards, have a fee attached. Both groups are looking into a constitutional challenge of the new law [Clarion Ledger report].

Also Tuesday, Washington electorates passed [Patch.com report] Senate Joint Resolution 8205 [text, PDF] by 71 percent, which brings the state in line on voter residency requirements. The law amends the Washington state constitution [text] to reduce the residency requirement for voting in presidential elections from 60 days to 30. These regulations had already been in effect in the state since the US Supreme Court ruled in Dunn v. Blumstein [opinion text] that residency requirements beyond 30 days were unconstitutional.

Finally, 60 percent of Mainers voted to repeal [Bangor Daily News report] Chapter 399 of the Public Laws of 2011, An Act to Preserve the Integrity of the Voter Registration and Election Process [text], which required registering to vote at least two days before the election. The repeal will reinstate a 38-year-old practice of same-day voter registration in Maine.




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New Jersey voters allow state-wide sports gambling
Julia Zebley on November 9, 2011 6:46 AM ET

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[JURIST] New Jersey voters on Tuesday ratified Public Question 1 [senate resolution text, PDF] by a 65 percent margin, amending the New Jersey constitution [text] to legalize sports gambling in the state despite a continued federal ban. The referendum, in defiance of the federal Professional and Amateur Sports Protection Act [text], will not go into effect unless the state wins a lawsuit against the US Department of Justice (DOJ) [official website]. A previous effort to challenge the federal law, which bans all sports betting in any state but Nevada, Montana, Oregon and Delaware, was dismissed until the New Jersey voters could voice their opinions on the referendum. The new law will allow sports gambling at Atlantic City casinos and racetracks, including betting on amateur and college sports. There is a restriction on gambling on New Jersey-college sports. However, wagers could be made by any means to the casino, including online. Legislators are prepared to introduce the new law [The Star-Ledger report] on Wednesday, but have not announced when their new lawsuit will proceed. Governor Chris Christie (R) [official website] supports both the referendum and lawsuit [AP report].

There is a presumptive prohibition on most forms of gambling in the US, although in Europe such bans have been found to violate EU law. The Washington Supreme Court [official website] ruled last year that a state ban on online gambling [JURIST report] is constitutional. That month, the EU Court of Justice (ECJ) [official website] delivered three judgments striking down gambling restrictions [JURIST report] in Germany because the regulations were not designed to protect public interest. The ECJ upheld a Swedish law restricting Internet gambling [JURIST report]. The ECJ held that bans on Internet gambling were acceptable for cultural, moral or religious reasons, but there should be no discrimination. The court concluded that Sweden's ban on Internet gambling was in line with EU laws, but that the nation's lottery laws were not allowed to penalize foreign gambling agencies differently from domestic agencies. In 2006, the US signed a significant ban on Internet gambling [JURIST report], making it illegal for banks or credit card companies to process transactions involving Internet gambling. However, enforcement of the law has been delayed [JURIST report].




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Mississippi voters reject personhood amendment
Hillary Stemple on November 9, 2011 6:37 AM ET

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[JURIST] Mississippi voters on Tuesday rejected a ballot measure [Initiative 26 materials] that would have amended the state constitution [text] to define the word "person" or "persons" to include "every human being from the moment of fertilization, cloning, or the functional equivalent thereof." The initiative, which would have given fetuses rights from the moment of conception, was defeated by more than 55 percent [AP report] of the state's voters. The primary goal of the legislation was an attempt to make abortion [JURIST news archive] illegal on the theory that a woman's right to choose an abortion cannot outweigh the fetus' right to life, if the fetus is at all points following conception, considered a person. Opponents of the initiative argued that the measure was "extreme" [CRR statement] and that it could have extensive implications to women's reproductive health beyond outlawing abortion. According to some legal scholars the initiative could have limited access to some types of contraception [JURIST op-ed] and fertility treatments, including in vitro fertilization (IVF). Pro-Choice advocacy groups also claimed that the initiative could have put doctors and women at risk of criminal prosecution for providing routine gynecological care. Proponents of the measure rejected the idea [The Atlantic report] that the initiative would have banned either abortion or contraception, stating that the initiative would only redefine the term 'person' within existing laws, which would not provide any provisions regarding enforcement. Proponents maintained that the state's legislature would have limited the application of the new definition to laws outlawing abortion.

The Supreme Court of Mississippi [official website] ruled [opinion, PDF] in September that the initiative could be placed on the ballot [JURIST report]. The ruling came after two Mississippi citizens filed a lawsuit claiming the initiative violated Article 15, Section 273(5)(a) [text, PDF] of the Mississippi Constitution. The court refused to rule on the constitutionality of the initiative itself, but concluded that it could not interfere with or question the validity of a legislative proposal prior to the election. The court, therefore, ultimately dismissed the challenge on the basis that Measure 26 is not ripe for review. Colorado voters struck down [Denver Post report] a similar ballot initiative [text, PDF] in November 2010 that would have amended the state's constitution [text] to extend rights to fetuses [JURIST report] and would have effectively outlawed abortion. In November 2007, the Colorado Supreme Court [official website] approved the language of an anti-abortion group's proposed ballot initiative that would amend the Colorado constitution [JURIST report] to define a fertilized egg as a "person" entitled to "inalienable rights, equality of justice, and due process of law" under the state constitution. JURIST Guest Columnist Caitlin Borgmann argues that redefining personhood is just one of several approaches aimed at curtailing abortion [JURIST op-ed].




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Madoff victims file class action suit against JP Morgan
Jamie Reese on November 8, 2011 1:32 PM ET

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[JURIST] Two former Bernard Madoff [JURIST news archive] investors filed a proposed class-action lawsuit against JP Morgan Chase & Co (JPMC) [corporate website] Monday seeking recovery of $19 billion for allegedly aiding Madoff in orchestrating his Ponzi scheme. The suit, filed in the US District Court for the Southern District of New York [official website], claimed JPMC willfully ignored signs of fraud [Reuters report] and was complicit in concealing Madoff's activities. The lawsuit further alleges that even a cursory examination of Madoff's funds would have revealed that there was no investment strategy and the money was simply flowing between Madoff and customers. It notes that JPMC had plenty of opportunities to question the legitimacy. Steve Berman, managing partner of Hagens Berman [official website] and attorney for the plaintiffs, stated that JP Morgan was, in effect, the banking back-office for the Madoff Ponzi scheme, shuffling piles of money from one account to another at Madoff's request. The bank, in response to a similar lawsuit which was dismissed last week, stated that the plaintiff had failed to show that anyone at the bank knew of Madoff's scheme or deliberately worked with him in order to earn more fees. The court dismissed the previous suit [decision, PDF] because Irving Picard, appointed trustee [official website], did not have standing [JURIST report] to seek money from the bank. Picard plans to appeal.

Another case from earlier this year was dismissed [opinion] against HSBC Holdings [corporate website] because the trustee had "no personal stake in the outcome of the controversy." Picard also plans to appeal this decision. The first payouts to Madoff's victims were approved [JURIST report] by the court in July. Picard filed almost 60 lawsuits [JURIST report] for victims of Madoff's fraud in December 2010 after being appointed trustee [order] in 2008. Madoff pleaded guilty [JURIST report] to 11 counts of securities fraud stemming from his Ponzi scheme in March 2009, and was sentenced [JURIST report] in June 2009 to 150 years in prison.




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Supreme Court hears arguments on GPS tracking, prosecutorial misconduct
Julia Zebley on November 8, 2011 12:58 PM ET

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[JURIST] The US Supreme Court [official website] heard oral arguments [day call, PDF] in two cases on Tuesday. In US v. Jones [transcript, PDF; JURIST report], the court will decide whether the government's warrantless use of a global positioning systems (GPS) [JURIST news archive] tracking device on respondent's vehicle to monitor its movements on public streets violated the Fourth Amendment [text]. The government argued that under US v. Knotts [opinion text], a GPS tracker is as permissible as monitoring a car by using a beeper inside the car for tracking purposes. Respondent's attorney argued that placing the GPS in the car created a seizure of the vehicle: "You have an invasion of his possessory interest, placement on the car. Physical invasion of a possessory interest ... is more significant, has always been viewed by this Court as more invasive than mere video—mere visual surveillance."

In Smith v. Cain [transcript, PDF; JURIST report], formerly Smith v. Louisiana, the court heard the latest of several allegations of prosecutorial misconduct [SCOTUSblog backgrounder] out of the New Orleans District Attorney's office [official website], in this case whether a series of violations of case law violated Juan Smith's due process rights. Smith's attorney opened with an exhaustive list of impropriety in the case:

In Brady v. Maryland, this Court established the now-familiar principle that the prosecution must hand over all favorable material evidence to the defense before trial. This case presents a flagrant violation of that principle. The Orleans Parish district attorney's office produced almost no relevant evidence to the defense before Petitioner's trial, and Petitioner was convicted of first degree murder based solely on the testimony of a single eyewitness. Unbeknownst to the defense, however, that eyewitness had told the police on multiple occasions that he could not identify any of the perpetrators or, as he put it, that he would not know them if he saw them. The suppression of those statements alone justifies a new trial, but the district attorney's office in this case also engaged in the wholesale suppression of statements of numerous other witnesses, statements that further undermined the sole eyewitness identification of Petitioner and, more broadly, cast doubt on Petitioner's involvement and role in the shooting.
In response, the district attorney's office defended the charges and asserted that Smith's case was handled professionally. Juan Smith was convicted on five counts of murder and sentenced to life in prison without parole. Smith's petition for review was denied by the Supreme Court of Louisiana [official website].




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UK court rules Catholic church could be liable for clergy abuse
Max Slater on November 8, 2011 11:58 AM ET

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[JURIST] A UK court ruled [judgment text] Tuesday that Catholic priests qualify as employees, meaning that the Catholic church could be held liable for sexual abuse by clergy members [JURIST news archive]. A 47-year-old woman filed suit against the Portsmouth Roman Catholic Diocesan Trust [church website] claiming that she was sexually abused by the Reverend Wilfred Baldwin during her childhood in a Catholic children's home. The diocese argued that they could not be held liable because Baldwin was not an employee, but Judge Alistair MacDuff rejected that argument:
[Baldwin] was provided with the premises, the pulpit and the clerical robes. He was directed into the community with that full authority and was given free rein to act as a representative of the Church. ... He had been trained and ordained for the purpose. He had immense power handed to him by the defendants. It was they who appointed him to the position of trust which (if the allegations can be proved) he so abused.
The case will be tried next month when another judge will decide whether the church is liable under the doctrine of vicarious liability, in which employers can be held culpable for the illicit behavior of their employees.

Clergy abuse has become a contentious legal issue in recent years, as the Vatican has come under intense scrutiny related to allegations of sexual abuse of children by local church officials. In September, Amnesty International [advocacy website] claimed [JURIST report] that clergy members' abuse of Irish children amounted to torture. The report, titled In Plain Sight [text, PDF] called special attention to "people in positions of power" who "ignore their responsibility to act." Also in September, the Center for Constitutional Rights (CCR) [advocacy website] filed a complaint [JURIST report] with the International Criminal Court (ICC) [official website] against Vatican officials, including Pope Benedict XVI, for widespread sexual abuse and subsequent concealment of thousands of incidents. In February 2010, the Vatican unveiled church procedures [JURIST report] for dealing with sexual abuse cases, titled the "Guide to Understanding Basic CDF Procedures concerning Sexual Abuse Allegations", which set up a multi-tiered system of enforcement, including local bishops and the Pope himself. Since 2007, the Church has settled over 500 cases [JURIST news archive] of clergy abuse in the U.S. alone, totaling more than $900 million.




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Cambodia genocide tribunal rules former official not entitled to amnesty
Drew Singer on November 8, 2011 11:44 AM ET

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[JURIST] The UN-backed Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website] on Monday ruled that Ieng Sary [ECCC profile], former deputy foreign minister of the Khmer Rouge regime [BBC backgrounder; JURIST news archive] is not protected from genocide charges by a 15-year-old royal pardon and amnesty. The court ruled [AFP report] that his amnesty does not apply to the crimes of genocide, torture or breach of the Geneva Convention of 1949 [text]. Sary served as a foreign minister for the regime between 1975 and 1979. In May, a panel in the ECCC denied a motion for pretrial release [JURIST report] by Ieng Sary.

In September, the court ordered [JURIST report] the trials of Ieng Sary and three other alleged Khmer Rouge leaders be split into a series of smaller trials [order, PDF]. The ECCC said that the separation of trials will allow the tribunal to deliberate more quickly [press release] in the case [materials] against the four elderly defendants. The first trial will focus on the beginning two phases of population movement and allegations of crimes against humanity, including murder, persecution not on religious grounds and forced disappearances associated with the first phases of population movement. Subsequent trials will focus on the third phase of population movement, genocide, persecution based on religious grounds and violation of the Geneva Conventions.




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UN rights office: Syria death toll exceeds 3,500
Sarah Posner on November 8, 2011 11:24 AM ET

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[JURIST] The Office of the High Commissioner for Human Rights (OHCHR) [official website] announced Tuesday that the death toll of Syrian protesters has exceeded 3,500 [press release] despite last week's signing of a peace plan sponsored by the League of Arab States [official website, in Arabic]. In the past week alone, approximately 60 people have been killed by military and security personnel, included 19 people who were killed on Sunday during the Muslim holiday of Eid al-Adha. Spokesperson for the OHCHR, Ravina Samdasani, said, "we are deeply concerned about the situation and by the Government's failure to take heed of international and regional calls for an end to the bloodshed." Despite the Syrian government's announcement Saturday that 553 prisoners would be released, tens of thousands of prisoners remain in detention as dozens of protesters continue to be arrested each day.

Last week, Syria announced that insurgents who have revolted against the government of president Bashar al-Assad [Al Jazeera profile] may qualify for amnesty [JURIST report] if they turn themselves into authorities by November 12. This plea followed what have been some of the deadliest clashes of a movement that began in Syria last March [JURIST report], and left at least 13 people dead over the past few days. In October, the UN and the League of Arab States released statements condemning violence in Syria after an estimated 40 people were killed in protest-related encounters. Earlier in October, UN High Commissioner for Human Rights Navi Pillay [official profile] urged the international community to take steps to protect civilian lives in Syria [JURIST report]. In August, Amnesty International (AI) [advocacy website] reported that 88 Syrians were killed [JURIST report] while in custody as a result of their protest, and the OHCHR reported on several occasions that Syrian forces may be committing crimes against humanity [JURIST report].




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Federal judge refuses to dismiss torture suit against former Somali colonel
Jennie Ryan on November 8, 2011 11:20 AM ET

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[JURIST] A judge for the US District Court for the Southern District of Ohio [official website] on Tuesday refused to dismiss a lawsuit against a former Somali military colonel. The defendant, Abdi Aden Magan, who now lives in Ohio, is charged with torture in connection with actions that allegedly occurred during the military dictatorship of Mohammad Siad Barre. The suit was filed [press release] in 2010 by the Center for Justice and Accountability (CJA) [advocacy website] on behalf of Abukar Hassan Ahmed [case materials], a former law professor and human rights attorney who alleges that Magan ordered his brutal torture in retaliation for Ahmed's criticism of the Barre regime's abuses of the Somali Constitution [text, PDF]. Magan argues that the suit was filed in the wrong county and should therefore be dismissed. He also argues that the suit was filed too long after the occurrence of the alleged abuse. The US Department of State [official website] filed a motion in the case arguing that Magan should not be allowed to claim immunity from the allegations.

In April, a judge for the US District Court for the Eastern District of Virginia [official website] denied a motion to dismiss [JURIST report] a federal suit against former Somali prime minister and defense minister Mohamed Ali Samantar [JURIST news archive]. Lawyers for Samantar had argued that the case should be dismissed because the statute of limitations had expired and because the courts should not interfere in political matters. In February, a federal judge ruled that Samantar was not entitled to legal immunity from civil lawsuits [JURIST report]. This ruling came after the US Supreme Court [official website] handed down a unanimous decision [JURIST report] in June 2010 that the Foreign Sovereign Immunities Act of 1976 (FSIA) [28 USC §§ 1330, 1602 et seq. text] does not provide foreign officials immunity from civil lawsuits. The suit has been ongoing since 2004 when the plaintiffs filed a complaint seeking damages from Samantar under the Torture Victim Protection Act of 1991 [28 USC § 1350 text]. Samantar was minister of defense and later prime minister of Somalia from 1980 to 1990. Respondents claim that Samantar authorized torture and the extrajudicial killing of them and members of their family. The Isaaq clan, of which the plaintiffs are members, was subjected to systematic persecution during Samantar's time in office before the collapse of the Somali government in 1991 [DOS backgrounder]. Samantar fled Somalia before the collapse of the government and now resides in Virginia.




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Supreme Court rules on 'clearly established' law for habeas petitions
Jaclyn Belczyk on November 8, 2011 11:00 AM ET

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[JURIST] The US Supreme Court [official website] ruled [opinion, PDF] unanimously Tuesday in Greene v. Fisher [SCOTUSblog backgrounder; JURIST report] that, for purposes of the Antiterrorism and Effective Death Penalty Act (AEDPA), "clearly established federal law" is limited to Supreme Court decisions "as of the time of the relevant state-court adjudication on the merits." 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 US Court of Appeals for the Third Circuit held that an opinion issued after a decision on the merits in state court is not "clearly established federal Law." Affirming the decision below, Justice Antonin Scalia wrote:
We must observe that Greene's predicament is an unusual one of his own creation. Before applying for federal habeas, he missed two opportunities to obtain relief under Gray. ... Having forgone two obvious means of asserting his claim, Greene asks us to provide him relief by interpreting AEDPA in a manner contrary to both its text and our precedents. We decline to do so, and affirm the judgment of the Court of Appeals.
The court rejected Greene's arguments that it is a bedrock rule that prisoners should benefit from any ruling made before "finality."

Under the AEDPA, a federal court may not grant habeas relief to a state prisoner with respect to any claim that has been "adjudicated on the merits in State court proceedings" unless the state-court adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." In January, the Supreme Court ruled [JURIST report] in Harrington v. Richter [opinion, PDF] that the section of the AEDPA limiting federal review of state court decisions to decisions resulting from an unreasonable application of the law or an unreasonable determination of the facts is applicable to state court orders issued without an accompanying explanation.




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Haiti cholera victims seek damages from UN for contamination
Rebecca DiLeonardo on November 8, 2011 10:53 AM ET

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[JURIST] The Institute for Justice and Democracy in Haiti (IJDH) [advocacy website] announced Tuesday that more than 5,000 Haitian cholera victims are seeking damages [press release] from the UN and the UN Stabilization Mission in Haiti (MINUSTAH) [official website] for its role in the introduction of the cholera virus into the country. Since the virus was introduced into Haiti in October 2010, an epidemic [CDC backgrounder] has killed more than 6,600 Haitians and infected over 475,000 more. The victims' petition alleges that the UN is liable for failing to screen its representatives as they entered Haiti, dumping untreated waste into Haiti's most important river, the Artibonite, and failing to adequately to respond to the epidemic. Mario Joseph, a lawyer for the Bureau des Avocats Internationaux (BAI), said Tuesday, "this is an opportunity for the United Nations to demonstrate that its stated ideals of eliminating disease and encouraging respect for rights are not just empty promises." In January, UN Secretary General Ban Ki-Moon [official website] announced that he would appoint an independent panel [press release] to investigate the source of the cholera outbreak in Haiti. The panel's final report [text, PDF], published in May, stated that the outbreak was likely caused by "human activity," but also concluded the resultant epidemic was caused by a "confluence of circumstances" and was "not the fault of ... a group or individual." Brian Concannon, IJDH's Director, indicated the victims rely on UN reports and law in their petition.

In June, more than 3,000 Americans signed a letter [text, PDF] to President Barack Obama urging him to stop deportations to Haiti [JURIST report] on humanitarian grounds. The letter suggested that deported citizens were immediately imprisoned in Haiti, where unsanitary prison conditions carried a high risk of exposure to the cholera epidemic as well as other deadly diseases. In April, the US State Department released [JURIST report] its 2010 Country Report on Human Rights Practices [materials], reporting that Haiti [materials] has faced significant human rights abuses following the breakdown of government control [JURIST report] after the 2010 earthquake. On January 12, 2010, a 7.0 magnitude earthquake [USGS backgrounder] caused at least 50,000 deaths and massive damage to property and infrastructure in Haiti. The most devastated city was the capital, Port-au-Prince, where MINUSTAH said that up to 50 percent of buildings [statement] have been destroyed or damaged, including the country's presidential palace, the UN Mission headquarters and the country's main prison [JURIST report].




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DOD releases regulations for military commission procedures
Jennie Ryan on November 8, 2011 10:33 AM ET

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[JURIST] The US Department of Defense [official website] on Monday released a guidebook [text, PDF] detailing the procedures to be followed in military commissions [JURIST news archive]. Changes to procedures introduced by the regulations include a provision that allows the judge in a military trial to approve the costs of a "learned counsel" in cases involving the possibility of capital punishment. Non-party observers, such as the media, will also be able to "challenge the applicability of a protective order to the military judge's designation of information as protected information [by] submitt[ing the challenge] in writing to the Chief Clerk with a copy to the attorneys of record." The new regulations were signed on Sunday by Deputy Secretary of Defense Ashton Carter [official profile]. In a forward to the regulations, Carter writes that the guidebook:
[P]rovides guidance for practitioners in military commissions and ... [t]o the extent that the guidance here differs from that which applies in courts-martial, that difference is necessitated by the unique circumstances of the conduct of military and intelligence operations during hostilities or by other practical need, consistent with Military Commissions Act of 2009.
The guidebook also include a sample prosecution in which a captive is charged with murder and pillage. The regulations replace the Regulation for Trial by Military Commissions [text, PDF] issued in April 2007.

The regulations were announced just days before the military commission at Guantanamo Bay [JURIST news archive] is set to arraign Abd al-Rahim al-Nashiri [NYT profile; JURIST news archive]. Last week, US prosecutors argued [JURIST report] that even if suspected USS Cole [JURIST news archive] bomber Al-Nashiri is acquitted by a military tribunal, the US government has the authority to detain him in Guantanamo Bay until the end of the hostilities in the US war on terror [JURIST news archive]. Navy Lt. Cmdr. Stephen Reyes, Al-Nashiri's defense attorney, argued that Al-Nashiri's inevitable indefinite detention renders his trial merely a show that lacks meaningful reprieve, and that jurors have the right to be informed that they are simply playing a role in a pre-determined political decision. Last month, al-Nashiri filed a motion to challenge [JURIST reports] the method in which Guantanamo Bay military tribunals are conducted.




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Australia passes law putting price on carbon emissions
Jaimie Cremeans on November 8, 2011 10:33 AM ET

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[JURIST] The Australian Senate [official website] voted 36-32 Tuesday to approve legislation [materials] that will impose a price on carbon emissions in an effort to improve the environment and the country's economy. The new law will put a fixed rate of A$23 per ton on carbon units with limits on how many can be auctioned and given out. The fixed price rate will take effect July 1, 2012, and will be raised each year until 2015. After 2015, the Clean Energy Regulator [official website] will be charged with setting out a new price for the units each year. Prime Minister Julia Gillard said in a press conference [transcript]:
This comes after a quarter of a century of scientific warnings, 37 Parliamentary inquiries and years of bitter debate and division. ... Today's vote means that the hard work now begins to cut carbon pollution and we will do that, cutting carbon pollution by 160 million tonnes in 2020, the equivalent of taking 45 million cars off the road.
Money raised from the carbon units tax will be used to fund tax cuts [press release] for Australian households, and the law is expected to create new jobs in development of clean energy sources.

Passage of this law comes as world leaders prepare to attend the Durban Climate Change Conference [official website] next month to discuss global efforts to reduce carbon emissions. The Australian Senate rejected a similar bill [JURIST report] right before the 2009 UN Climate Change Conference that would have established a cap-and-trade system and gone into effect in July 2011. Opposition to the 2009 bill claimed it would result in higher energy prices and that it would be useless for Australia to adopt cap-and-trade if the US did not also adopt a similar system. The US has still failed to adopt such a system, but President Barack Obama continues to push for it even as he is met with strong opposition by legislators concerned about negative effects on jobs and the economy.




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Federal judge gives final approval to Bank of America overdraft fee settlement
Sarah Posner on November 8, 2011 10:22 AM ET

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[JURIST] A senior judge for the US District Court for the Southern District of Florida [official website] on Monday gave final approval to a $410 million settlement in the class action suit against Bank of America (BOA) [corporate website] for overdraft fees that affected more than 13 million people. Judge James Lawrence King found this agreement to be fair and reasonable [AP report] even though customers will not be fully compensated for overdraft fees which averaged approximately $35 per transaction. Approximately 13.2 million customers who had a debit card with BOA between January 2001 and May 2011 will have money credited to their account or will receive checks from BOA as a result of this settlement. The settlement with BOA, which was reached in February, was given preliminary approval [JURIST reports] in May.

BOA is among more than two dozen US, Canadian and European lenders named as defendants in the class action lawsuit, which consolidated claims across the country in 2009. In their amended complaint [text, PDF], the plaintiffs claimed that BOA's practices were deceptive in that they did not reasonably notify customers that they had the option of opting out of the overdraft scheme and declining transactions. The complaint also alleged that BOA's excessive fees disproportionately effect low-income customers. BOA has been the target of several lawsuits. In June, BOA announced that it has agreed to pay $8.5 billion [JURIST report] to settle claims that it sold bad securities contributing to the housing market collapse. The securities, called first-lien residential mortgage-backed securitization, were issued by the BOA unit Countrywide Financial Corporation, which it purchased for $4 billion in 2008.




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Ninth Circuit to rehear Armenian genocide lawsuit
Maureen Cosgrove on November 8, 2011 10:13 AM ET

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[JURIST] The US Court of Appeals for the Ninth Circuit [official website] on Monday decided [opinion, PDF] to revisit a case to determine whether a California law declaring Armenian genocide in Turkey conflicts with US foreign policy. At issue is California Civil Procedure Code § 354.4 [text], which recognizes the World War I-era killings of more than one million Armenians by Turkish soldiers as a genocide. The Ninth Circuit has twice ruled on the issue. In December, the court reversed [opinion, PDF] its prior decision and allowed a suit by the heirs [JURIST report] of victims of the Armenian genocide [BBC backgrounder; JURIST news archive] to proceed. The heirs are seeking life insurance payments from German insurance companies. The insurers argue that the law should be struck down [AP report] because both Turkey and the US do not recognize the Armenian genocide. The heirs and their lawyers maintain that the US does not have an official policy on the civil unrest in Turkey and, therefore, there is no conflict.

The Armenian genocide remains a contentious issue in US law and politics. In August 2010, a panel of the US Court of Appeals for the First Circuit [official website] unanimously dismissed a lawsuit [JURIST report] challenging the exclusion of materials questioning the Armenian genocide from a school curriculum. In March 2010, the Obama administration announced its opposition to a resolution [JURIST report] labeling the World War I-era killings as genocide. The announcement came after the US House of Representatives Committee on Foreign Affairs passed the resolution [JURIST report] by a vote of 23-22. Turkish Prime Minister Recep Teyyip Erdogan condemned the resolution, and the Turkish government recalled its ambassador to the US.




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Texas appeals court stays execution over DNA testing law changes
Maureen Cosgrove on November 8, 2011 9:17 AM ET

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[JURIST] The Texas Court of Criminal Appeals [official website] on Monday stayed the execution [order, PDF] of convicted murderer Henry "Hank" Skinner [advocacy website] in order to review changes to a state law that may permit DNA testing in relation to his case. Skinner, who was convicted in 1995 of killing his girlfriend, Twila Jean Busby, and her two adult sons, was scheduled to be executed Wednesday. Skinner and his attorneys argued that the court must consider a new law [AP report] passed by the Texas legislature that permits an offender to request DNA testing, despite refusing the testing as a trial strategy. Skinner's counsel had refused DNA testing at the time of Skinner's 1995 trial for fear that the testing would bolster the prosecution's case. Attorneys for the state contend that the law, which went into effect on September 1, does not apply. The court, however, granted Skinner's plea for consideration of the new Texas statute:
Texas Code of Criminal Procedure Chapter 64, which provides for DNA testing, has undergone several changes since its creation, but those changes have never been Skinner reviewed in the particular context of this case. Because the DNA statute has changed, and because some of those changes were because of this case, we find that it would be prudent for this Court to take time to fully review the changes in the statute as they pertain to this case.
The court also ordered that the lower court submit its legal determinations for denying the request for new testing so that Skinner may make a meaningful appeal. The stay does not guarantee that evidence will be tested.

Skinner has insisted he is innocent, saying he was not capable of committing the murders because of the amount of drugs and alcohol in his system on the day of the murders. While the prosecutors in the case did rely on some DNA evidence in the case, Skinner's attorneys argue they were selective in the tests they conducted. In March, the US Supreme Court [official website] ruled [opinion, PDF] 6-3 for Skinner in Skinner v. Switzer [Cornell LII backgrounder] that a convicted prisoner seeking access to biological evidence for DNA testing may assert a civil rights claim [JURIST report] under Section 1983 [text]. A year earlier, the Supreme Court granted a temporary stay of execution [JURIST report] just one hour prior to Skinner's scheduled execution so he could pursue his civil rights claim. In District Attorney's Office v. Osborne, the court held that a defendant does not have the right to obtain post-conviction access to the state's biological evidence in order to do DNA testing. The decision involved a claim for access under section 1983, but the majority rejected that approach saying it "would take the development of rules and procedures in this area out of the hands of legislatures and state courts shaping policy in a focused manner and turn it over to federal courts applying the broad parameters of the Due Process Clause."




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Georgia high court reviewing assisted suicide law
Drew Singer on November 8, 2011 7:03 AM ET

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[JURIST] A Georgia law [§16-5-5 text] intended to combat assisted suicide [JURIST news archive] actually infringes on First Amendment [text] rights, defense lawyers argued to the Supreme Court of Georgia [official website] on Monday. The law makes it a felony for someone who "publicly advertises, offers or holds himself or herself out as offering that he or she will intentionally and actively assist another person in the commission of suicide and commits any overt act to further that purpose." Defendants Ted Goodwin, Claire Blehr, Lawrence D. Egbert Nicholas Alec Sheridan were arrested in 2009 for allegedly violating that law by running an assisted death operation. The foursome pleaded not guilty to charges that they tampered with evidence, violated anti-racketeering laws and helped a cancer-stricken man kill himself. A lower court held that the law does not violate First Amendment guarantees, and the state Supreme Court decision is expected in the next few months.

In 2009, a sharply divided Montana Supreme Court [official website] ruled [JURIST report] that physician assisted suicide is not banned by state law, making Montana the third state to allow the practice after Oregon and Washington. The court upheld in part and reversed in part a lower court ruling, agreeing with its finding that physician assisted suicide is not illegal under state law, but giving no opinion on the greater constitutional question addressed by the lower court. Instead, it found in a 4-3 decision that physician assisted suicide was not rendered illegal under state statute or by public policy concerns.




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Supreme Court hears arguments on Jerusalem passport, immigration removal
Jaclyn Belczyk on November 7, 2011 2:52 PM ET

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[JURIST] The US Supreme Court [official website] heard oral arguments [day call, PDF] Monday in two cases. In MBZ v. Clinton [transcript, PDF; JURIST report], the court heard arguments on whether the political question doctrine [Cornell LII backgrounder] deprives a federal court of jurisdiction to enforce a federal statute that explicitly directs the secretary of state how to record the birthplace of an American citizen on a Consular Report of Birth Abroad and on a passport. US citizen Menachem Zivotofsky was born in Jerusalem in 2002. His parents asked the State Department to record his place of birth as Jerusalem, Israel, but were told it could only be listed as Jerusalem because the US does not recognize any country as having sovereignty over Jerusalem. His parents filed suit in 2003, and a federal district court dismissed the suit as a political question. Counsel for the government argued:
The Executive has determined that the passports it issues should not identify Israel as the place of birth for persons born in Jerusalem. Petitioner seeks relief ... that would countermand that executive judgment. But under the Constitution that is an exercise of the Executive's exclusive recognition power. The Constitution commits that power exclusively to the Executive and neither a court nor the Congress can override that judgment.
Counsel for the petitioner said, "I don't think the Court is being asked to decide a question of foreign policy."

In Kawashima v. Holder [transcript, PDF; JURIST report], the court heard arguments to clarify what counts as an aggravated felony for purposes of removing an immigrant from the country. Petitioners Akio and Fusako Kawashima are natives and citizens of Japan who were living in California as lawful permanent residents. Petitioners were charged with, and pleaded guilty to, filing, and aiding and abetting in filing, a false statement on a corporate tax return. An immigration judge concluded that the convictions were "aggravated felonies" within the meaning of 8 USC § 1101(a)(43)(M)(i) [text], ordering petitioners to be removed. The Board of Immigration Appeals affirmed the decision, and it was later upheld [opinion, PDF] by the US Court of Appeals for the Ninth Circuit. The US Court of Appeals for the Third Circuit has reached the opposite conclusion. Several justices were skeptical of petitioners' position that an intentional lie does not necessarily mean an intent to deceive.




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Sri Lanka urged to enforce laws against torture, ill-treatment
Sung Un Kim on November 7, 2011 2:48 PM ET

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[JURIST] Sri Lanka has failed to successfully investigate the issues of torture [report, PDF] and impunity for past human rights violations in the country, Amnesty International (AI) [advocacy website] said Monday on the eve of a review by the UN Committee Against Torture [official website]. In its report, AI documented that there are still common and widespread patterns of torture and ill-treatment of prisoners despite the fact that these actions are outlawed by the legislation and criminalized under the Sri Lankan Convention against Torture (CAT) [text]. AI referred to additional sources, such as the report [text, PDF] by the Asian Human Rights Commission [advocacy website] that summarized 323 reported cases of torture by the Sri Lankan police officials from 1998 to 2011. According to the report, only three prosecutions were made under the CAT during its first 14 years of implementation (1994-2008). AI concluded that Sri Lanka failed to successfully prosecute officials who were convicted for violation of human rights in the country:
Sri Lanka's own laws should, but fail to, provide protection from the torture and ill-treatment which is so often a consequence of arbitrary and incommunicado detention. Enforcement of laws and directives aimed at preventing torture require a clear implementation plan to ensure that all forces responsible for arrests and detentions are aware of and understand these laws and procedures, and that those who breach them are disciplined, including through criminal prosecution in fair trials of those who commit crimes.
AI urged the Sri Lankan government to ensure that its investigation of allegations of torture as well as enforcement of the penalties against government officials engaged in torture and other ill-treatment against detainees are strictly enforced. In addition, AI called for an independent international investigation.

Last month, a group of rights organizations and lawmakers urged [JURIST report] Australia to investigate Sri Lankan war crimes and a top ranking official in the Sri Lankan High Commission [official website] in Canberra for war crimes that were allegedly committed by the Sri Lankan Navy during its fight against the Liberation Tigers of Tamil Eelam (LTTE) in 2009. Earlier in October, the Sri Lankan government announced that it would adopt a five-year action plan [JURIST report], the National Action Plan for the Protection and Promotion of Human Rights, which would take effect immediately. This announcement was in response to UN Secretary-General Ban Ki-Moon's inquiry [JURIST report] to the UN Human Rights Council [official website] to evaluate the alleged claims found within a report [text, PDF] that accused the Sri Lankan government of committing war crimes during the final stages of the conflict with the LTTE in 2009. The report was released in April of this year stating [JURIST report] that it found some credible evidence of the alleged war crimes.




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Four new charges against Ukraine ex-PM Tymoshenko
Julia Zebley on November 7, 2011 1:06 PM ET

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[JURIST] The State Tax Service of the Ukraine [official website] is reopening four cases [press release] against former prime minister Yulia Tymoshenko [personal website; JURIST news archive], her lawyer reported on her website on Monday. The charges allege tax evasion [RIA Novosti report] during her time as head of United Energy Systems of Ukraine (UESU) in 1996. Last month, the Security Service of Ukraine [official website] brought new corruption charges against Tymoshenko days after she was sentenced [JURIST reports] to seven years in prison on charges of abuse of power and corruption.

Tymoshenko's trial resumed at the end of September after a two-week recess [JURIST reports]. In August, the Kiev Appeals Court refused Tymoshenko's appeal of her detention for contempt charges [JURIST reports]. Also in August, Judge Rodoin Kireyev rejected a request [JURIST report] from Tymoshenko to release her from prison. In July, the Security Service of Ukraine (SBU) [official website, in Ukrainian] announced that they are launching a criminal investigation [JURIST report] into UESU, an energy company at one time headed by Tymoshenko. 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. 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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Federal judge blocks new tobacco warning label requirements
Jerry Votava on November 7, 2011 12:25 PM ET

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[JURIST] A judge for the US District Court for the District of Columbia [official website] on Monday granted a temporary injunction to block the implementation [order, PDF] of new requirements of graphic image and textual warning labels imposed by the Family Smoking Prevention and Tobacco Control Act (FSPTCA) [HR 1256 text]. The Food and Drug Administration (FDA) [official website] has mandated that by September 2012, all cigarette packaging shall contain new warning labels [FDA backgrounder] with graphic images of the health issues related to smoking and related textual warnings. A suit filed by the RJ Reynolds Co [corporate website], the manufacturer of several popular cigarette brands, requested the injunction [complaint, PDF] on the basis that the new regulations violate their First Amendment rights and burden their right to commercial speech by compelling placement of the new warning labels on the top 50 and bottom 20 percent of all packaging and advertisements. Judge Richard Leon agreed with the plaintiff's assertions in his related opinion [text, PDF]:
[T]his Court concludes that the plaintiffs have demonstrated: (1) a substantial likelihood of success on the merits; (2) that they will suffer irreparable harm absent injunctive relief; (3) that neither the Government, nor the public, will suffer any comparable injury as a result of the relief sought; and (4) that the public's interest in the protection of its First Amendment rights against unconstitutionally compelled speech will be, in fact, furthered.
The FDA based its arguments on a ruling [JURIST report] issued in January 2010 by the US District Court for the Western District of Kentucky [official website] which upheld the majority of restrictions on cigarette advertising imposed by the FSPTCA, including the new warning labels. Leon acknowledged this argument, but decided that ultimately the tobacco companies could prevail in their suit to prevent the implementation of the new warnings.

In July, the US Court of Appeals for the Sixth Circuit [official website] heard oral arguments [JURIST report] in the tobacco advertising case, Discount Tobacco City & Lottery v. USA [Justia backgrounder], on which the FDA has relied. The Sixth Circuit has not yet issued an opinion on the case. In 2009, US President Barack Obama [official website] signed the FSPTCA into law [JURIST report], granting the FDA certain authority to regulate tobacco products. The legislation heightens warning-label requirements, prohibits marketing "light cigarettes" as a healthier alternative and allows for the regulation of cigarette ingredients. The bill gives the FDA authority to regulate tobacco products but does not permit the agency to regulate tobacco leaf that is not in the hands of tobacco product manufacturers or producers of tobacco leaf, including tobacco growers, tobacco warehouses and tobacco grower cooperatives. Cigarettes and other tobacco products have been subject to strict marketing regulations on both the federal and state levels.




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Supreme Court to rule on life sentences for juveniles convicted of homicide
Jaclyn Belczyk on November 7, 2011 11:55 AM ET

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[JURIST] The US Supreme Court [official website] on Monday granted certiorari [order list, PDF] in three cases. In Jackson v. Hobbs [docket; cert. petition, PDF], the court will consider whether the imposition of a life-without-parole sentence on a 14-year-old child convicted of homicide violates the Eighth and Fourteenth Amendment [text] prohibitions against cruel and unusual punishment. The court has also been asked to decide whether such a sentence violates the Eighth and Fourteenth Amendments when it is imposed upon a 14-year-old who did not personally kill the homicide victim, and whether such a sentence violates the Eighth and Fourteenth Amendments when it is imposed upon a 14-year-old as a result of a mandatory sentencing scheme that categorically precludes consideration of the offender's young age or any other mitigating circumstances. The case will be heard in tandem with Miller v. Alabama [docket; cert. petition, PDF]. The Supreme Court ruled last year in Graham v. Florida [JURIST report] that the Eighth Amendment ban on cruel and unusual punishments prohibits the imprisonment of a juvenile for life without the possibility of parole as punishment for the juvenile's commission of a non-homicide offense.

In Magner v. Gallagher [docket; cert. petition, PDF], the court will determine whether disparate impact claims are cognizable under the Fair Housing Act [text], and, if so, whether they should be analyzed under a burden shifting approach, a balancing test, a hybrid approach or some other test. There is a split among the circuit courts over which standard to apply. Respondents are rental property owners who argue that the petitioners violated the Fair Housing Act by "aggressively enforcing" the local housing code. The US Court of Appeals for the Eighth Circuit reversed the district court's grant of summary judgment for petitioners, allowing the disparate impact claim [opinion, PDF].

Also Monday, the court denied certiorari in the appeal of Duane Buck, a convicted murderer in Texas. Justice Antonin Scalia ordered a stay of execution [JURIST report] in September pending a determination on whether to grant certiorari in the case. Buck was not arguing his innocence, but rather improper practices during his sentencing hearing. A clinical psychiatrist testified that Buck, a black man, was more likely to commit another crime due to his race, and thus should be given the death penalty. Justice Samuel Alito issued a statement respecting the denial of certiorari, joined by Scalia and Justice Stephen Breyer. Justice Sonia Sotomayor dissented, joined by Justice Elena Kagan, saying this death sentence was "marred by racial overtones and a record compromised by misleading remarks and omissions made by the State of Texas in the federal habeas proceedings below."

The court also issued two per curiam decisions Monday. In KPMG v. Cocchi [opinion, PDF], the court vacated and remanded a decision on arbitration. In Bobby v. Dixon [opinion, PDF], the court reversed a lower court ruling that had overturned respondent's murder conviction.




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Spain court sentences ETA leader to 105 years for ordering murder
Jamie Davis on November 7, 2011 11:04 AM ET

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[JURIST] A Spanish court on Friday sentenced a former military leader of the Basque separatist group ETA [BBC profile], Francisco Javier Garcia Gatzelu, alias Txapote, to 105 years in prison for ordering the murder of Socialist politician Fernando Buesa and his bodyguard Jorge Diez in 2000. The two men were killed in an explosion [El Pais report, in Spanish] in the town of Vitoria. The National Court, the highest judicial authority to hear terrorism cases, convicted Txapote [El Pais report, in Spanish] of the two murders and two counts of injury because two other people were also hurt in the attack. Txapote was first arrested in 2001 and has already been sentenced [AFP report] to imprisonment in Spain prior to his latest conviction. In 2006, he was convicted and sentenced to multiple years in prison, including 50 years imprisonment for kidnapping and murder of a town counselor, and another 82 years for killing a Basque socialist leader and 18 years for another attacked that injured no one. Spain has sentenced Txapote to a total of 308 year in prison and six murders, including the National court's latest opinion.

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




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France court begins new terror trial for 'Carlos the Jackal'
Jennie Ryan on November 7, 2011 10:41 AM ET

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[JURIST] A special anti-terrorist court at the Palais de Justice in Paris began proceedings on Monday in the trial of alleged terrorist "Carlos the Jackal" [BBC profile] accused of planning numerous bombings throughout France in the early 80s. Venezuelan-born Ilich Ramirez Sanchez, widely known as "Carlos the Jackal," is currently serving a life sentence in France [NYT report] for the murder of two French policemen and a Lebanese informer in 1975. Sanchez was convicted in absentia for those murders in 1992. He was captured by the French secret service in 1994, retried for those crimes and began serving a life sentence after he was again convicted in 1997 [CNN report]. He faces new charges stemming from his alleged involvement in four bombings in France in 1982 and 1983, including two bombings that took place in Marseilles on New Year's Eve in 1983. A total of 11 people were killed in the bombings and nearly 200 were injured. The trial is expected to last for six weeks.

The current charges against Sanchez stem from a lengthy investigation lead by Jean-Louis Bruguiere [BBC profile], a French investigating judge. In May 2007, French officials raised the possibility of charging [JURIST report] Sanchez for the bombings. He was eventually formally charged, but a court date was not set until this year. In July 2006, the appeals chamber of the European Court of Human Rights [official website] in Strasbourg rejected an appeal [JURIST report] from Sanchez claiming that the eight years he spent in solitary confinement in a French prison was a breach of the European Convention on Human Rights [text, PDF]. The appeals chamber ruled [JURIST report] that Sanchez' solitary confinement was not inhumane or otherwise violative of his rights.




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7 Pakistanis indicted in Bhutto assassination
Maureen Cosgrove on November 6, 2011 2:48 PM ET

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[JURIST] An anti-terrorism court in Pakistan on Saturday indicted seven people in the 2007 assassination of former prime minister Benazir Bhutto [BBC obituary; JURIST news archive]. A senior officer and the former police chief of Rawalpindi, where the assassination took place, along with five militants, alleged members of the Pakistani Taliban, were among those charged with conspiracy [NYT report] in Bhutto's murder. Special prosecutor Chaudhry Azhar said negligence charges against the officers stem from their orders to remove evidence, hose down the crime scene two hours after the attack, and reduce security measures for Bhutto leading up to the attack. The five militants allegedly aided the suicide bomber and gunman [Al Jazeera report]. Former president Pervez Musharraf [BBC profile; JURIST news archive], who was accused of being involved in the assassination [JURIST report] by the Federal Investigation Agency of Pakistan [official website] in February, was not charged.

The Pakistani government and police forces have been criticized for their involvement in Bhutto's assassination. In April, the independent UN commission formed to investigate the assassination issued a report [JURIST report] holding the Pakistani government and police forces responsible for failing to provide adequate security. The report also accused the government of failing to launch a proper investigation into the assassination. The three-member commission was formed [JURIST report] in June 2009. Members included former Chilean Ambassador to the UN Heraldo Munoz, former attorney general of Indonesia Marzuki Darusman, and Peter Fitzgerald, a former deputy police commissioner in the Irish National Police who has served with the UN in other capacities. Bhutto was killed in a suicide attack in December 2007 that claimed the lives of at least 20 other people. At that time, Bhutto was the head of the opposition Pakistan People's Party, which was challenging then-prime minister Pervez Musharraf's Pakistan Muslim League-Quaid (PML-Q) [party websites] in the lead-up to parliamentary elections.




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DOJ tells Alabama it has authority to compel public school enrollment data
Ashley Hileman on November 6, 2011 11:56 AM ET

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[JURIST] The US Department of Justice (DOJ) [official website] on Friday issued a letter [text] to Alabama's Attorney General Luther Strange [official website], declaring its authority to investigate potential violations of civil rights laws. The letter, authored by Assistant Attorney General Thomas Perez [official profile], was in response to a letter the DOJ received from Strange on Wednesday, in which he questioned the legal authority [AP report] the DOJ had to compel enrollment data from Alabama school districts. Citing the duty of the Civil Rights Division of the Justice Department to investigate potential violations of civil rights laws that "protect educational opportunities for school children" and the complaints the DOJ has received regarding the state's controversial immigration law [HB 56 text; JURIST news archive], Perez declared that the US Attorney General has "express authority" to investigate and enforce non-discrimination statutes related to education. Perez also challenged Strange's ability to speak for the schools, writing that it was the DOJ's understanding "that you do not represent the school districts we have contacted. Please let us know if that understanding is correct, so that we may proceed accordingly." The correspondence between the DOJ and Strange stems from a letter sent earlier this week [JURIST report] by the former to each school district in the state as a reminder that they must provide equal access to public education for all children, regardless of their immigration status.

Last month, the US Court of Appeals for the Eleventh Circuit [official website] temporarily blocked [JURIST report] portions of the immigration law, including 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 ruling came in response to a motion filed [JURIST report] by the DOJ and a coalition of immigrants rights groups after a judge for the US District Court for the Northern District of Alabama [official website] twice refused to block the law [JURIST report] from taking effect. The DOJ argues that the "state regime contravenes the federal government's exclusive authority over immigration." Alabama state officials have defended 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.




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Ohio passes law limiting abortions for minors
Julia Zebley on November 5, 2011 3:49 PM ET

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[JURIST] Ohio Governor John Kasich [official website] on Friday signed [press release, PDF] into law House Bill 63 [text and materials], creating further restrictions on minors if they seek an abortion [JURIST news archive] without parental consent. The new law puts several conditions in place, advancing the former law of making a minor receive a judge's consent to have an abortion without parental notification. Now, judges may only permit abortion in cases where they have "clear and convincing evidence" that the abortion is in the best interest of the young woman after a hearing on the record. The hearing must be held within five days after petitioning the court for an abortion:
At the hearing, the court shall hear do all of the following: Hear evidence relating to the emotional development, maturity, intellect, and understanding of the minor; the nature, possible consequences, and alternatives to the abortion; and any other evidence that the court may find useful in determining whether the minor should be granted the right to consent to the abortion or whether the abortion is in the best interests of the minor; Specifically inquire about the minor's understanding of the possible physical and emotional complications of abortion and how the minor would respond if the minor experienced those complications after the abortion; Specifically inquire about the extent to which anyone has instructed the minor on how to answer questions and on what testimony to give at the hearing.
The law also requires the minor to meet with judges in their home county or an adjacent county, rather than the county they are having the abortion in, a stipulation some think may face a constitutional challenge [Columbus Dispatch report]. Ohio Right to Life [advocacy website] stated previous requirements amounted to a rubber stamp for abortions [press release] commending Kasich for signing the bill and called he and the state Congress the "most pro-life Governor and General Assembly in our state's history." Since Kasich took office, Ohio has passed three abortion restrictions, and has had a total of ten bills introduced on the subject. NARAL Pro-Choice Ohio [advocacy website] criticized the new law [press release], noting, "Governor Kasich must not be very proud of signing this dangerous bill into law because he did so on a Friday afternoon during the final hours of the election season."

Kasich signed into law a bill banning abortions after 20 weeks [JURIST report] in July, the last of several pieces of anti-abortion legislation in the state. That legislation requires doctors to determine the viability of the fetus and seek a second opinion as to whether the child is capable of surviving outside of the womb. In the event that the fetus is viable, an abortion would only be made available if the woman faced "death or a substantial and irreversible impairment of a major bodily function." In June, the Ohio House of Representatives [official website] voted 54-43 to approve legislation that would prohibit abortions after a fetal heartbeat is detectable [JURIST report], which could occur as early as six weeks into the pregnancy. The month before, a judge for the US District Court for the Southern District of Ohio [official website] upheld an Ohio law that limits the use of the "abortion pill," overturning a 2006 injunction [JURIST reports]. The law requires that the use of the pill, RU-486, conform with federal guidelines, which currently do not allow the pill to be used after seven weeks of pregnancy.




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NJ court rules same-sex marriage suit can proceed on state grounds
Dan Taglioli on November 5, 2011 2:36 PM ET