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Legal news from Tuesday, November 29, 2011




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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