January 2012 Archives


HRW urges India to prosecute border soldiers for torture
Brandon Gatto on January 31, 2012 1:40 PM ET

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[JURIST] Human Rights Watch [advocacy website] on Monday urged [press release] the Indian government to prosecute Border Security Force (BSF) [official website] soldiers that it has long implicated in torture and extrajudicial killings near the Bangladesh border. HRW's plea comes in response to the release of a YouTube video [warning: graphic content] capturing BSF soldiers stripping, tying up and beating a Bangladeshi national caught smuggling cattle from Bangladesh into India. Although Indian law requires the BSF to hand over such lawbreakers to the police, HRW contends that the soldiers "illegally detained and tortured" the man, then left him to return to Bangladesh. Said Meenakshi Ganguly [HRW profile], South Asian director at HRW:
These horrific images of torture on video show what rights groups have long documented: that India's Border Security Force is out of control. The Indian government is well aware of killings and torture at the border, but has never prosecuted the troops responsible. This video provides a clear test case of whether the security forces are above the law in India.
The BSF has so far suspended eight soldiers and ordered an inquiry into the situation. However, despite the video evidence, the Indian government has yet to file criminal charges against any of the soldiers.

In December 2010, HRW and the Banglar Manabadhikar Suraksha Mancha (MASUM) [advocacy website], a Kolkatta-based NGO that posted the video, and Odhikar [advocacy website], an NGO based in Dhaka, published Trigger Happy: Excessive Use of Force by Indian Troops at the Bangladesh Border [text, PDF], a report accusing BSF soldiers of torturing both Indians and Bangladeshis. Although the Indian government soon thereafter ordered an end to the use of lethal force by BSF soldiers except in self-defense, allegations of killings and torture have continued. In April 2010, the Cabinet of India approved [JURIST report] the Prevention of Torture Bill [text, PDF] after lengthy legislative delays in an effort to move the country closer to international human rights standards.




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France lawmakers seek ruling on genocide denial ban
Max Slater on January 31, 2012 1:26 PM ET

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[JURIST] A French genocide denial ban [materials, in French] passed last week [JURIST report] stalled on Tuesday after two groups of French politicians challenged the law's constitutionality. The opposition groups, which include members in both the Senate and the National Assembly, gathered the necessary signatures to require the Constitutional council of the French Republic [official websites, in French] to determine if the law is constitutional. While France has already recognized the 1915 killings of Armenians by Ottoman Turks as genocide, the new law would punish anyone who denies that the killings constituted a genocide with up to a year in jail and a USD $59,000 fine [AFP report]. While French President Nicolas Sarkozy [official website, in French] has insisted that the law did not specifically target Turkey, Turkish officials were furious, warning that if the law takes effect, Turkey will impose unspecified sanctions on France [AP report]. Turkish Prime Minister Recep Tayyip Erdogan [BBC profile] remained hopeful, however, that the constitutional council would strike down the genocide denial law [Al Jazeera report].

The Armenian genocide is also a contentious issue in US law and politics. In November the US Court of Appeals for the Ninth Circuit [official website] decided to revisit a case [JURIST report] to determine whether a California law declaring Armenian genocide in Turkey conflicts with US foreign policy. 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. Erdogan condemned the resolution, and the Turkish government recalled its ambassador to the US.




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Spain judge Garzon defends Franco-era probes
Hillary Stemple on January 31, 2012 1:14 PM ET

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[JURIST] Spanish Judge Baltasar Garzon [BBC profile; JURIST news archive] took the stand in his second trial [JURIST report] before the Spanish Supreme Court [official website, in Spanish] on Tuesday and defended his investigation into war crimes allegedly committed under Francisco Franco [BBC backgrounder] during the Spanish Civil War. Garzon has been charged with abusing power by ordering the exhumation [JURIST reports] of 19 mass graves in Spain in order to assemble a definitive national registry of Civil War victims, despite a 1977 law that provides amnesty for Franco-era crimes. While on the stand, Garzon refused to answer questions [CNN report] posed to him by the prosecution but did answer questions from his defense lawyer. Garzon denied that his investigation was politically motivated, stating that he was seeking justice for the victims of the alleged crimes. Garzon also rejected the idea that the 1977 amnesty law covers widespread human rights abuses. He indicated that the 1977 law was only meant to cover crimes of a political nature [Telegraph report], not crimes against humanity. Garzon's testimony was consistent with his previous statements defending [JURIST report] the validity of the investigation by insisting that he acted within the bounds of the law and appropriately applied the law at all times. If he is convicted, Garzon could face a suspension of up to 20 years.

Last March, Garzon filed a petition [JURIST report] with the European Court of Human Rights (ECHR) [official website], challenging the 2010 abuse of power charges, for which he was suspended [JURIST report]. His petition follows the September 2010 decision of the Criminal Chamber of the Spanish Supreme Court, which unanimously confirmed [JURIST report] a lower court order that Garzon abused his power and must face trial. Garzon is widely known for using universal jurisdiction [AI backgrounder; JURIST news archive] extensively in the past to bring several high-profile rights cases, including those against Osama bin Laden and former Chilean dictator Augusto Pinochet. He is also facing two other trials, including one trial that began earlier in January involving charges that he ordered the placement of wiretaps in jailhouses [JURIST report] to record conversations between inmates and their lawyers. The third trial, which has not started, involves bribery charges over money Garzon received for seminars conducted in the US.




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Haiti ex-president Duvalier will not face trial for rights violations
Sung Un Kim on January 31, 2012 1:03 PM ET

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[JURIST] Haiti's Investigative Magistrate Carves Jean ruled Monday that former president Jean-Claude Duvalier [BBC backgrounder; JURIST news archive] will not stand trial for crimes against humanity, including torture, false imprisonment, rape and murder during his reign between 1971 and 1986. Jean dismissed the charges reasoning that there are not sufficient legal grounds and that the statute of limitations has expired. Based on this ruling, Duvalier will go on trial before a special court facing charges of corruption and misappropriation of public funds with at most 5-year imprisonment. Jean's ruling has not been made public. Numerous human rights groups, including Amnesty International (AI) [advocacy website; press report] and the UN have criticized [press release] this ruling stating that there are sufficient evidence for the charges against human rights violations and that under international law statute of limitations is not applicable:
It is clear under international law that there is no statute of limitations for such crimes, and the UN Human Rights office has provided technical assistance and legal advice stressing this point. We are extremely disappointed at reports that Mr. Duvalier may not be charged with any human rights crimes, despite numerous complaints by victims to the prosecutor. Impunity for such serious crimes cannot be allowed to prevail and we urge the relevant authorities to ensure that justice is, belatedly, delivered to the many victims of human rights abuses committed under the government of Mr. Duvalier. There can be no true reconciliation and forgiveness without justice.
The charges were initiated last January by more than 20 victims after Duvalier returned from his exile in France. Human Rights Watch [advocacy website] and other organizations expressed their plan to appeal the judgment.

Haiti has been urged numerous times by different organizations to improve its human rights records and to try Duvalier for his crimes against humanity. In September, AI urged [JURIST report] the Haitin government to prosecute Duvalier after its release of a report [report, PDF] documenting crimes committed during the former president's reign. The findings were the result of an eight-month investigation [JURIST report]. In July, the UN Deputy High Commissioner for Human Rights [official website] Kyung-Wha Kang [official website] pressed Haiti [JURIST report] to establish a system of human rights and equality, especially by speeding up the case against Duvalier. He was accused of crimes against humanity and corruption [JURIST reports] in January of last year.




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ICTY war crimes suspect Seselj demands compensation for trial delays
Julia Zebley on January 31, 2012 7:35 AM ET

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[JURIST] The International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] announced Monday that former Serb nationalist politician and war crimes suspect Vojislav Seselj [official website, in Serbian; JURIST news archive] is suing ICTY for USD $2.6 million in damages due to alleged unreasonable delays in his trial. The ICTY declined to comment [AP report] on the filings Seselj made earlier this month, in which he charges that the ICTY refused to give him materials in Serbian; denied him communication with family members, doctors, and legal counsel; delayed his trial interminably; and refused him a right to his own, independent counsel. He has also requested special damages for his latest contempt conviction [JURIST report]. Seselj's doctors have also claimed that his health is deteriorating [B92 report], in part due to his treatment by the ICTY. In October, the ICTY ruled that Seselj received all guarantees of due process and fair proceedings available [JURIST report].

Seselj's war crimes trial began [JURIST report] in 2007 after he was charged [indictment, PDF] with three counts of crimes against humanity and six counts of war crimes and accused of establishing rogue paramilitary units affiliated with the ultra-nationalist Serbian Radical Party (SRS), which are believed to have massacred and otherwise persecuted Croats and other non-Serbs during the Balkan conflict. In July, Seselj alleged that he was being denied "speedy process," as he has been in custody since February 2003, and that the ICTY had denied him the right to defend himself by not fully funding his defense. Seselj made similar claims in 2009 [press release], which were also refuted by the court. His trial was briefly suspended [JURIST report] in 2009 because of concerns witnesses were being intimidated. The trial resumed in 2010 after the delay, and was again ordered to continue in 2011 after Seselj sought to have the charges dismissed [case sheet, PDF]. The trial recently resumed earlier this month, after Seslj's third contempt conviction.




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Romania high court sentences ex-PM Nastase to 2 years in prison
Julia Zebley on January 31, 2012 6:11 AM ET

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[JURIST] Romania's High Court of Cassation and Justice [official website, in Romanian] on Monday sentenced former prime minister Adrian Nastase [personal website, in Romanian] to two years in prison on charges of graft and corruption [lawyer notes, in Romanian]. Referred to as the "trophy quality" case, Nastase and five other members of the Social Democratic Party of Romania [party website, in Romanian] were convicted of raising money through taxation under a company called "trophy quality construction works" that then funneled USD $2.2 million to Nastase's failed presidential campaign. Some of Nastase's co-conspirators received sentences up to seven years, and all six received civil prohibitions [TVR report, in Romanian]. Nastase was found not guilty of corruption charges in the "Aunt Tamara" case in December, which is awaiting an appeal taken by the National Anticorruption Department. He also awaits hearings on a third corruption case. In 2009, the European Commission (EC) [official website] urged Romania to lift a judicial immunity from Nastase [JURIST report] and charge him with corruption. Nastase stated that he will appeal the conviction [Realitatea interview, in Romanian] and that it was a decision made to bar him from politics.

Allegations of widespread corruption in Romania have been ongoing since the nation broke away from the Soviet Union in 1989. Last week, the Constitutional Court of Romania ruled that a law allowing local and parliamentary elections to be held at the same time [JURIST report] was unconstitutional. After the ruling, Romanian President Traian Basescu defended his administration amid protests against the government's education, justice, criminal and economic policies. In March 2010, the EC released a report advising Romania to do more to combat corruption and organized crime [JURIST report] as well as conduct judicial reforms in order to enjoy their full rights as members of the European Union (EU). In January 2007, Romania officially joined the EU [JURIST report] following six years of accession negotiations.




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Pakistan high court lifts travel ban on former US ambassador
Jamie Davis on January 30, 2012 2:03 PM ET

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[JURIST] The Pakistan Supreme Court [official website] on Monday ordered that a travel ban imposed upon the former ambassador to the US is to be lifted. The ban was imposed upon Husain Haqqani after an anonymous memo that implied Pakistani politicians were collaborating with US politicians was sent to Washington, DC, in May, after Osama bin Laden was killed by US forces [JURIST report]. Haqqani resigned from his position as ambassador to the US after he came under suspicion for being the author of the memo. The Pakistan Supreme Court created a commission in order to investigate the origin of the memo [JURIST report], but Haqqani has not been charged with any crime. Pakistani President Asif Ali Zardari [official website] had also fallen under suspicion until recently when the man accusing Haqqani and Zadari of being involved with the memo, Mansoor Ijaz, refused to travel to Pakistan to testify in the case. Ijaz, who is also believed to have delivered the note to Washington, offered to send his testimony by video [BBC report]. Since his refusal to testify in person, the case is perceived to have weakened drastically.

Pakistan's Supreme Court has recently been in the news over issues concerning the ongoing struggle between the government and the courts. Pakistani Prime Minister Yousuf Raza Gilani honored a summons issued by the Supreme Court of Pakistan [JURIST report] by appearing earlier this month to answer contempt charges brought by the court. Gilani was ordered to appear to explain why he did not comply with court's order to reopen a corruption case against Zardari. The conflict between the prime minister and the court stems from an order which struck down [JURIST report] the National Reconciliation Ordinance (NRO) [text] in 2009, which granted immunity to Zardari and 8,000 other government officials from charges of corruption, embezzlement, money laundering, murder and terrorism between January 1986 and October 1999.




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HRW concerned over aging US prison population
Jamie Reese on January 30, 2012 12:37 PM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] expressed concern [press release] Friday over aging men and women becoming the most rapidly growing group in US prisons and the ability of officials to provide appropriate housing and medical care to these individuals. The report [text, PDF], "Old Behind Bars: The Aging Prison Population in the United States," asserts that, depending on the state, the cost to effectively house and treat older prisoners is three to nine times higher than those for younger prisoners. The report found that 9.6 percent of prisoners are serving life sentences and an additional 11.2 percent have sentences longer than 20 years. Among other recommendations, HRW urged state and federal officials to:
  • Review sentencing and release policies to determine which could be modified to reduce the growing population of older prisoners without risking public safety;
  • Develop comprehensive plans for housing, medical care, and programs for the current and projected populations of older prisoners; and
  • Modify prison rules that impose unnecessary hardship on older inmates.
The number of US state and federal prisoners age 55 or older is currently 124,400 which grew 282 percent between 1995 and 2010, while the total number of prisoners grew by only 42 percent.

California's prison population has raised particular concerns. Earlier this month, a judge for the US District Court for the Northern District of California [official website] ruled that California prison officials have failed to protect disabled parolees [JURIST report] by not providing them wheelchairs and other mobility assistance devices. Last year, the US Supreme Court ruled [opinion, PDF] in Brown v. Plata [Cornell LII backgrounder] to uphold an order requiring California to release up to 46,000 prisoners [JURIST report] to remedy the state's overcrowded prisons [JURIST news archive]. California submitted a plan [JURIST report] to comply with the court's order, but the state's Legislative Analyst's Office [official website] has concluded that California is unlikely to meet [JURIST report] the Supreme Court's two-year deadline. According to the International Center for Prison Studies [official website], the US has the most prisoners per capita [text, PDF] in the world.




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Senegal high court allows president to run for third term
Sarah Posner on January 30, 2012 10:09 AM ET

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[JURIST] Senegal's highest court ruled Monday that President Abdoulaye Wade [official profile, in French] can run for a third term, rejecting an appeal by the opposition. The Senegalese Constitution [text, in French] had no term limits when Wade initially took office in 2000, but it was amended in 2001 to impose a two-term limit. The court found that Wade's "first term" under the 2001 constitution did not begin until he was reelected in 2007, concluding that he is eligible to run for another term. The court also rejected an appeal by popular musician Youssou Ndour, ruling that he will not be permitted to run for president because he failed to obtain the necessary signatures [AP report]. Critics have accused the court of bias, since all five judges were appointed by Wade. Elections are scheduled for February 26. In response to this decision, the opposition has called on the country to protest Wade's candidacy, with demonstrations expected to take place later this week.

After the court's preliminary ruling on Friday, a group of youth protesters were confronted by the police, resulting in the death of one officer. With legal means of stopping Wade's candidacy now exhausted, the country may face instability in the coming weeks. The governments of the US and France have both warned of instability that could result from election-related violence.




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Norway men convicted of terrorism for plotting attack on Danish newspaper
Sarah Posner on January 30, 2012 9:17 AM ET

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[JURIST] A Norwegian court on Monday convicted two men accused of planning an attack against the Danish newspaper that published a cartoon of the Prophet Muhammad. This is the first conviction under Norway's anti-terror laws [AP report]. Both defendants, Mikael Davud and Shawan Sadek Saeed Bujak, were found guilty in the Oslo district court, and sentenced to seven and three-and-a-half years, respectively. Although cleared of terror charges, David Jakobsen, will serve four months for helping the two defendants acquire explosives. The judge said that Davud orchestrated the attack with al Qaeda. Depicting the Prophet Muhammad is considered blasphemous by Muslims and has been a source of international controversy since 2005 when a Danish newspaper published caricatures of the Prophet Muhammad in a series of cartoons [JURIST news archive].

The caricatures of the Prophet Muhammad have sparked controversy across the globe. In May 2010 the Pakistan Telecommunications Authority [official website] ordered [JURIST report] Internet service providers to block social networking site Facebook [website] in response to a competition created by a group of the website's members entitled "Draw Muhammad Day." Also in May, a Danish public prosecutor for the Utrecht District Court filed an appeal against an April ruling [JURIST reports] acquitting the Arab European League (AEL) of hate speech charges stemming from posting an inflammatory cartoon on their website insinuating that the Holocaust was fabricated. The court ruled that publishing the cartoon was not a criminal offense because it was intended to be a contribution to public debate regarding a perceived double standard in the distribution of the Danish Muhammad cartoons.




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Libya to take control of makeshift prisons
Julia Zebley on January 29, 2012 3:08 PM ET

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[JURIST] In response to international criticism the Libya Ministry of Justice announced on Sunday that it will be commandeering "makeshift prisons" around the country to prevent further prisoner torture. Deputy Minister Khalifa Ashour acknowledged that primarily loyalists to former dictator Muammar Gaddafi [BBC obituary; JURIST news archive] have been tortured in unregulated prisons [AP report]. Other detainees are citizens under arrest for murder or drug and alcohol possession. Ashour also stated that the Ministry has taken control of two prisons already, one in Tripoli and one in Misrata. Earlier this week, both Amnesty International (AI) and UN High Commissioner for Human Rights Navi Pillay [JURIST reports] criticized the Libyan government for the interim prisons that were created during last year's revolution in Libya [JURIST backgrounder].

Allegations of war crimes and human rights violations have been widespread in the aftermath of the Libyan conflict. Earlier this month Middle East rights groups alleged human rights violations [JURIST report] and that all parties involved, including the North Atlantic Treaty Organization (NATO) [official website], committed acts ranging from use of excessive force against protesters to cruel and inhuman treatment of prisoners during detention. In September, the Libyan National Transitional Council (NTC) [official website] vowed to investigate allegations of human rights after AI published a report [JURIST report] alleging that both sides of the Libya conflict are responsible for human rights abuses and warning the NTC to act quickly to investigate these allegations. In August, Physicians for Human Rights (PHR) [advocacy website] reported [text, PDF] Libyan troops used children as human shields [JURIST report] to deter attacks by NATO. That same month, the Libyan Prime Minister Al Baghdad Ali Al-Mahmoudi requested that the UN create a "high-level commission" to investigate alleged human rights abuses [JURIST report] by NATO.




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Bahrain to criminalize protester assault on police officers
Julia Zebley on January 29, 2012 2:18 PM ET

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[JURIST] State media for Bahrain announced on Sunday that new measures will be taken against protesters [BNA report] in light of recent violence against police officers. Acting under the orders of Prime Minister and Prince Khalifa bin Salman Al Khalifa [official profile], the Cabinet of Bahrain [official website, in Arabic] will soon amend the penal code to include a 15-year prison sentence for "instigators and implementers" of physical assault against police officers. The BNA report denied that recent protests have been meritorious:
The cabinet expressed sorrow in view of the increasingly growing provocative calls which instigate the targeting of security personnel—these provocative calls come from forums, website, social networks or practically during unlicensed demonstrations and gatherings which have nothing to do with peacefulness, calls for reformation, freedom of expression nor democracy.
Last week, Human Rights Watch (HRW) [advocacy website] reported [HRW report] that the Bahraini government is engaging in a "widespread crackdown on anti-government protests," and that since the declaration of a state-of-emergency in March [JURIST report], hundreds of protesters have been arrested and sentenced to hard labor penalties or death sentences. Although the state-of-emergency and laws related to it were lifted in May [JURIST reports], protests and violence against protesters continue. A report in November [JURIST report] by the Bahrain Independent Commission of Inquiry (BICI) [official website] stated that 48 police officers were being investigated for allegations of extra-judicial torture and executions.

Protests and demonstrations in Bahrain [BBC backgrounder] have been ongoing since February 2011 [JURIST report]. In response to the BICI report, King Hamad bin Isa Al Khalifa [official profile] swore that reforms would be made. Al Khalifa promised to amend the nation's constitution [text] earlier this month, to allow the National Assembly [official profile] more oversight of ministers and cabinet members [JURIST report]. Earlier this month, a Bahraini court on overturned the death sentences for two protesters convicted of killing two police officers during the demonstrations that took place in the country last year. The original conviction [JURIST report] was rendered by a special security court set up as part of the emergency law in place while the country's Sunni rulers attempted to silence a Shiite-led to effort bolster civil and political rights in the country. In December, UN High Commissioner for Human Rights Navi Pillay said that the Bahrain government should release prisoners detained during peaceful protests [JURIST report] and focus on rebuilding national trust in the government. Pillay's statement followed a visit by a team of human rights officials to Bahrain at the invitation of the Bahrain government.




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UN Secretary General demands Africa countries respect gay rights
Matthew Pomy on January 29, 2012 11:34 AM ET

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[JURIST] UN Secretary General Ban Ki Moon [official profile] said in a statement [text] delivered Sunday to the African Union Summit that Africa must honor the Universal Declaration of Human Rights [text] by ending discrimination based on sexual orientation and gender identity. Many African nations still outlaw homosexuality. As of 2011, the 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. Ban called for an end to this discrimination as part of Africa's further "investments in civil, political, economic, social and cultural rights." He said in his speech:
The Universal Declaration of Human Rights is a promise to all people in all places at all times. Let me mention one form of discrimination that has been ignored or even sanctioned by many States for far too long-discrimination based on sexual orientation or gender identity. This has prompted some governments to treat people as second-class citizens, or even criminals. Confronting this discrimination is a challenge. But we must live up to the ideals of the Universal Declaration.
Ban's statement follows statements by both US Secretary of State Hillary Clinton and British Prime Minister David Cameron [statements] speaking out against the current state of gay rights in Africa on behalf of their governments.

In June, the UN Human Rights Council (UNHRC) [official website] passed [JURIST report] the "Human rights, sexual orientation and gender identity" resolution, the UN's first resolution calling for an end to sexuality discrimination. In March 2009, the US signed [JURIST report] a UN gay rights declaration [text, PDF], which had previously been signed by 66 other nations. The declaration is a nonbinding measure that does not have the full force of a resolution. It urges on states to end criminalization and persecution of homosexuals. In 2008, the UN General Assembly [official website] was divided over the issue of decriminalizing homosexuality [JURIST report] with nearly half the countries calling for decriminalization, while the remaining countries opposed decriminalization.




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Tenth Circuit rules criminalizing false claims of military honors constitutional
Michael Haggerson on January 28, 2012 7:50 PM ET

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[JURIST] The US Court of Appeals for the Tenth Circuit [official website] ruled [opinion, PDF] on Friday that the Stolen Valor Act (SVA) [text], which criminalizes the act of falsely claiming to have received a medal from the US military, is constitutional and not a violation of the First Amendment [text] right to freedom of speech. The SVA imposes a six month prison sentence on anyone who falsely claims to have received a military service medal or a one year sentence if the individual claimed to have received a Congressional Medal of Honor [official website]. The court stated that "knowingly false factual statements are not intrinsically protected under the First Amendment" as long as the law punishing false statements provides "breathing space" for protected speech: "knowingly false statements, in contrast even to incendiary ideas, are no part of the 'the common quest for truth and the vitality of society as a whole.' Just because controversial ideas and opinions merit constitutional protection does not mean false facts deserve the same immunity." The court further stated that there was no danger of the law suppressing free speech, because it only criminalizes knowing misstatements of fact and does not criminalize political speech, criticism or parody.

The Supreme Court [official website] is set to hear arguments in February in US v. Alvarez [JURIST report; docket] to decide whether the SVA is constitutional. The case is an appeal from a ruling [JURIST report] by the US Court of Appeals for the Ninth Circuit [official website] that the SVA is an unconstitutional restriction on free speech. The Ninth Circuit held that the speech prohibited under the Stolen Valor Act did not fit within the narrow categories of false speech held to be beyond the First Amendment's "protective sweep." The Stolen Valor Act was unanimously approved by the Senate and signed into law by former president George W. Bush in 2006. The act broadened provisions of previous US law and criminalizes the unauthorized wear, manufacture, sale or written or oral claim of any military decorations and medals.




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UN: Maldives must release or charge arrested judge
Michael Haggerson on January 28, 2012 7:33 PM ET

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[JURIST] The UN told Maldives on Saturday that Judge Abdulla Mohamed must either be charged or released from indefinite detention. Mohamed was arrested for corruption [JURIST report] in an unprecedented move by the military, following a ruling to release a government critic. Mohamed is also accused of obstructing police investigations and having ties to organized crime [Minivan News report]. The arrest has sparked street protests and prompted all the country's courts to boycott sessions. The Maldives Minister of Foreign Affairs [official website] asked the UN Office of the High Commissioner for Human Rights [official website] for help resolving the issue [JURIST report] last week. The Maldives Supreme Court [official website] and the Judicial Service Commission [official website], which investigates judicial conduct, have called the arrest illegal and have demanded that Mohamed be released, but the army has yet to comply. UN officials have not yet decided how to respond to the request [AP report].

The Maldives has faced ongoing political difficulties following the adoption of its constitution [JURIST report] in late 2008. President Mohamed Nasheed defeated longtime political opponent Maumoon Abdul Gayoon [BBC profile], who had jailed him numerous times during his 30-year rule. However, opposition legislators have blocked the ruling party's legislative agenda, leaving certain crucial provisions of the new constitutional system unestablished. This resulted in the resignation of Nasheed's entire cabinet [BBC report] in June 2010. The Maldives Constitution [text, PDF] provides for multi-party elections, an independent judiciary and grants more authority to the legislature. It also enumerates fundamental rights of citizens and establishes several special commissions on issues relating to human rights and corruption.




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Italy must end violence against women: UN
Jamie Davis on January 28, 2012 6:42 PM ET

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[JURIST] A UN expert on violence against women urged [press release; official statement] Italy on Friday that it must do more to end violence against women, primarily by focusing at underlying causes of gender discrimination in Italian society. UN Special Rapporteur Rashida Manjoo [official profile] made her recommendation after a 12-day visit to Italy [UN News Centre report] during which she met with multiple survivors of domestic violence. Manjoo emphasized that the current poor economic climate in Italy is no justification for violence against women and that the country has many resources available to women, such as psychological and economic assistance, that should not be disposed of. Manjoo said:
Most manifestations of violence are underreported in the context of a family-oriented and patriarchal society where, domestic violence is not always perceived as a crime, there is economic dependency, and there are perceptions that the state response to such complaints will not be appropriate or helpful...[a] fragmented legal framework and inadequate investigation, punishment for perpetrators, and compensation for women victims of violence, also contributes to the silencing and invisibility surrounding this issue.
Manjoon is expected to present the findings from her mission to the UN Human Rights Council (UNHRC) [official website] in June.

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




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Netherlands to ban burqa
Jamie Davis on January 28, 2012 6:07 PM ET

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[JURIST] The Cabinet of the Netherlands announced on Friday that a ban on burqas [JURIST news archive] in the Netherlands will go forward later this year. The ban, proposed in September [JURIST report] and heavily supported by Geert Wilders' [personal website; JURIST news archive] anti-Islam Freedom Party, is aimed at prohibiting burqas and other face coverings. Deputy Prime Minister Maxime Verhagen [official profile, in Dutch] denied that the ban was meant for religious clothing [Reuters report] and noted that the ban will also include motorcycle helmets and balaclavas when they are worn in inappropriate locations. The proposed legislation will not prohibit face coverings in mosques. Verhagen said the purpose behind the ban is to stop people from being able to commit crimes and remain undetected by concealing their identities and covering their faces. The Liberal-Christian Democrat coalition, the majority party in parliament, has agreed to propose a modified ban next week which would impose fines on people who violate the ban. The ban must still pass both houses of parliament in order to be enacted as law.

If enacted, the Netherlands will become the second European country, after France [text, in French], to ban the burqa. A French court in September first enforced its own ban [JURIST report] when it fined two Muslim women for violating the controversial French law. Although more than 90 women were previously cited by police, the fines are the first time a French court has enforced the law passed in April. The Netherlands is not the only country to follow France's lead by attempting to ban face coverings. In August, an Italian parliamentary commission approved a draft law [JURIST report] that bans women from wearing full-face veils in public. In July, Belgium implemented a law banning women from wearing the burqa [JURIST report] in public, with violators facing the possibility of fines or up to seven days in jail.




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BP ordered to share partial liability with Transocean in oil spill claims
Jerry Votava on January 27, 2012 4:21 PM ET

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[JURIST] Judge Carl Barbier of the US District Court for the Eastern District of Louisiana [official website] Thursday issued an order [text, PDF] that British Petroleum (BP) [corporate website] will be held liable for a portion of the damages owed by Transocean [corporate website] stemming from the Deepwater Horizon oil spill [BBC backgrounder; JURIST news archive]. BP will be required to indemnify Transocean against damages created by the pollution itself that are awarded throughout the litigation [materials] pending against it. BP will not be required to pay an punitive damages or civil fines as a result of these suits. The court did not rule as to whether BP or Transocean would be held strictly liable, negligent or grossly negligent for the equipment failure and subsequent oil spill that created the pollution. Transocean is the company that owned the Deepwater Horizon oil rig that was contracted by BP, which subsequently caused the oil spill. This ruling is separate from a ruling issued [JURIST report] by Barbier in August, which permits punitive damages against BP, but that ruling pertained to claims brought against BP directly.

Last summer Barbier dismissed [JURIST report] consolidated racketeering claims against BP in connection with the spill brought under the US Racketeer Influenced Corrupt Organizations (RICO) [text]. In February of last year, Mississippi Attorney General Jim Hood [official website] asked the district court to order the Gulf Coast Claims Facility (GCCF) [official website] 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 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 2010 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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Guatemala court orders ex-dictator to stand trial
Jaimie Cremeans on January 27, 2012 1:22 PM ET

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[JURIST] Guatemalan Judge Carol Flores ruled Thursday that ex-dictator Rios Montt must stand trial for charges of genocide and crimes against humanity. The judge heard the prosecutor's initial statements Wednesday and decided Thursday that the evidence was sufficient to go to trial. Montt is being charged for crimes committed throughout the country's 36-year civil war [BBC timeline], which officially ended in 1996. Montt was a general in the military who became dictator after a coup in 1982 but lost power a year later as a result of another coup. His charges are based on 72 incidents that caused 1,771 deaths under Montt's military command. Judicial officials decided Saturday that Montt will be forced to testify [JURIST report] at his trial.

The Guatemalan Civil War resulted in more than 200,000 deaths, 95 percent of which the military was responsible for according to a UN report [text, in Spanish]. The majority of those who were killed were part of Guatemala's indigenous Mayan population. Two former police officers [JURIST report] and four former soldiers [JURIST report] were convicted in 2010 and 2011 of charges relating to these crimes. Spain attempted to charge Montt [JURIST report] with war crimes in 2008, but failed because it lacked jurisdiction over the case. Montt had ignored warrants [JURIST report] put out by Spain for his arrest in 2006 because he claimed he was not aware of any crimes committed by his men during the war.




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US lawmakers request information on new Google privacy policy
Matthew Pomy on January 27, 2012 1:20 PM ET

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[JURIST] US Representative Edward Markey (D-MA) [official website; press release] and seven other lawmakers Thursday sent a letter [text, PDF] to Google CEO Larry Page [NYT backgrounder] containing 11 questions regarding consumer privacy rights as affected by Google's new privacy policies [corporate website]. The letter states that the privacy policy and Google's consolidated data sharing system raise questions about whether consumers can opt out of the new system, either globally or on a product-by-product basis. As Co-Chairman of the Congressional Bipartisan Privacy Caucus, Markey also expressed concerns as to whether Google's new policies violate the settlement [JURIST report] reached with the Federal Trade Commission (FTC) [official website] last year:
Google's new privacy policy should enable consumers to opt-out if they don't want their use of YouTube to morph into YouTrack. Consumers—not corporations—should have control over their own personal information, especially for children and teens. I plan to ask the Federal Trade Commission whether Google's planned changes to its privacy policy violate Google's recent settlement with the agency.
Markey emphasized the degree to which consumers rely on Google and the importance of protecting the user's privacy. The FTC settlement resulted after privacy concerns arose over Google's controversial Buzz social networking tool rollout. According to its statement announcing the new privacy policy to members, Google's policy changes are directed across all of their services with the intention of creating a better user experience.

Google has had several legal battles in the last year, with consumer privacy rights often at issue. In August the Department of Justice (DOJ) [official website] announced that the agency had reached a $500 million settlement [JURIST report] with Google for permitting Canadian pharmaceutical companies to advertise to and target US consumers. In July a federal judge extended settlement negotiations [JURIST report] over a 2005 copyright suit filed against Google over its Google Books [corporate website] book scanning project. Also in July another federal judge ruled that Google could appeal a decision permitting a wiretapping lawsuit [JURIST report] over Google's Street View [corporate website] service to proceed. Google was accused of violating user privacy by using WiFi networks to collect data for the service, a charge that came as a result of a multistate investigation that began in June of 2010. There have been international rulings on the Street View service as well. A Swiss court ruled the service constituted a violation of privacy, while a German court ruled it did not [JURIST reports].




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Libya torture causing prisoner deaths: AI
Sung Un Kim on January 27, 2012 10:51 AM ET

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[JURIST] Amnesty International (AI) [advocacy website] Thursday reported the recent deaths of several Libyan detainees who were apparently tortured while in custody [press release]. The deaths come amid allegations of widespread torture and ill-treatment of detainees accused of being pro-Gaddafi loyalists and fighters during the Libyan conflict [JURIST backgrounder] last year. AI conducted extensive interviews with detainees in and around Tripoli, Misrarah and Gheryan, many of whom showed visible marks indicative of torture, and whose accounts of maltreatment are consistent with their patterns of injury. AI reports that both official military and security entities as well as the multitude of unrecognized armed militias are responsible for the torture and subsequent deaths. Despite repeated requests by AI since May and its October report calling for an end to the torture of Libyan detainees [report, PDF; press release], AI claims the new Libyan government has not taken adequate steps to investigate such human rights violations:
So far there has been a complete failure on the part of those in power to take concrete steps to end torture and other ill-treatment of detainees and to hold accountable those responsible for such crimes. We don't underestimate the challenges faced by the Libyan transitional authorities in establishing control over the multitude of armed militias operating throughout the country, but we must see them taking decisive action on torture. In the interests of building a new Libya based on respect for human rights, this issue cannot be left at the bottom of the pile.
AI concludes its most recent report by urging the Libyan government to abolish all non-official detention facilities and bring them under the control of legal authorities, to conduct investigations into the alleged torture practices and other maltreatment, to remove from detention facilities persons engaged in such activities and to provide detainees access to fair trials, lawyers and medical support.

Allegations of war crimes and human rights violations have been widespread in the aftermath of the Libyan conflict. On Thursday UN High Commissioner for Human Rights Navi Pillay [official website] expressed concern [JURIST report] over human rights violations in the country, urging that all detention facilities to be brought under the control of the Ministry of Justice and the General Prosecutor's Office. Last week a coalition of Middle Eastern human rights organizations accused [JURIST report] the parties involved in the Libyan conflict to be in violation of human rights by using excessive force against protesters and cruel treatment of detainees. In September the Libyan NTC vowed to investigate allegations of human rights after AI [advocacy website] published a report [JURIST report] alleging that both sides of the Libya conflict are responsible for human rights abuses and warning the NTC to act quickly to investigate the charges. In August Libyan Prime Minister Al Baghdad Ali Al-Mahmoudi requested that the UN create a "high-level commission" to investigate human rights abuses allegedly committed by NATO [JURIST report].




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Chevron officials to face criminal charges in Brazil for oil spill: report
Michael Haggerson on January 27, 2012 10:39 AM ET

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[JURIST] Brazil prosecutors plan to file criminal charges, in addition to the $11 billion civil suit, against Chevron [corporate website] officials for the 2,400 barrel oil spill [Global Voices backgrounder] off the coast of Brazil in the Campos Basin in November. Brazilian officials state that Chevron acted irresponsibly [Reuters report] and took substantial risks in the Frade oil field in the Campos Basin. Up to 12 Chevron officials are expected to be indicted. In contrast, British Petroleum (BP) [corporate website] agreed to set aside $20 billion [JURIST report] for the Deepwater Horizon oil spill [BBC backgrounder; JURIST news archive], which was 1,000 times larger than the Frade spill, and no BP officials have faced criminal charges.

Chevron is also currently appealing an $18 billion fine [JURIST report] for pollution in the Amazon jungle. The judgment against Chevron was upheld in January by a three-judge panel of the Provincial Court of Justice of Sucumbios in Lago Agrio, Ecuador. The $18 billion fine, one of the largest in the history of environmental contamination suits, was originally set at $8.6 billion [JURIST report] but was more than doubled for Chevron's refusal to pay "moral reparations" to the Ecuadorian government, as required by the original ruling. The Amazon Defense Coalition [advocacy website], plaintiffs in the suit, have responded that the first judgment was a reaffirmation of how Chevron's greed and criminal misconduct in dumping billions of gallons of toxic waste into the river has led to death and disease. Damages were initially awarded in February by the Provincial Court of Justice of Sucumbios which found that Texaco, which was acquired by Chevron in 2001, polluted large areas of the country's rain forest.




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Second Circuit allows Ecuador court's $18 billion judgment against Chevron
Brandon Gatto on January 26, 2012 1:51 PM ET

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[JURIST] The US Court of Appeals for the Second Circuit [official website] on Thursday lifted [opinion, PDF] an injunction won by Chevon Corporation [official website] to block enforcement of what the US oil company claims is a fraudulent, multibillion-dollar judgment in Ecuador for polluting the Amazon jungle. In reversing the decision [opinion, PDF] made by the US District Court for the Southern District of New York [official website], the Second Circuit held that Chevron may not challenge the approximately $18 billion Ecuadorian judgment against it before enforcement of that judgment has actually been sought by the Ecuadorian plaintiffs. In its interpretation of the Uniform Foreign Money-Judgments Recognition Act [text, PDF], the court concluded that judgment-debtors like Chevron can challenge a foreign judgment's validity under the Act only defensively and in response to an attempted enforcement. The court found that an effort of enforcement by the Ecuadorian plaintiffs had not yet been undertaken anywhere, and might never be undertaken in New York. While both Chevron and the Ecuadorian plaintiffs have yet to comment on the decision, Chevron has long contended [press release] that it has never conducted oil operations in Ecuador and that the allegations of environmental and social harm in the Amazon are therefore false. The Second Circuit's ruling was in line with an earlier decision issued in September.

Just last week, Chevron filed [JURIST report] a similar appeal [text, PDF, in Spanish] with Ecuador's National Court of Justice to reconsider the original decision [press release] by an Ecuadorian judge requiring the oil company to pay roughly $18 billion in damages for its role in polluting the Amazon. Specifically, Chevron argued that the judge's decision violated Ecuador's constitution because the court failed to correct or punish the alleged fraud and corruption committed by plaintiffs' attorneys. Chevron also contended that because it inherited the case from Texaco, an oil company who was released from such liability by Ecuador in the 1990s, it too should be released from liability. The judgment was originally upheld in January [JURIST report] by a three-judge panel of the Provincial Court of Justice of Sucumbios in Lago Agrio, Ecuador. Though the fine was initially set at $8.6 billion [JURIST report], it was later more than doubled for Chevron's refusal to pay "moral reparations" to the Ecuadorian government, as required by the original ruling. The Amazon Defense Coalition [advocacy website], the Ecuadorian plaintiffs, have said that the first judgment was a reaffirmation of how Chevron's greed and criminal misconduct in polluting the region has led to death and disease. Damages were initially awarded last February by the Provincial Court of Justice of Sucumbios which found that Texaco, acquired by Chevron in 2001, polluted large areas of the country's rain forest.




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Minnesota high court upholds mandatory DNA samples from convicted criminals
Katherine Getty on January 26, 2012 12:47 PM ET

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[JURIST] The Minnesota Supreme Court [official website] ruled Wednesday that a Minnesota statute requiring people convicted of crimes to submit a DNA sample does not violate [opinion, PDF] the Fourth Amendment [text] right to unreasonable search. The Minnesota law [text], which was enacted in 2010, requires an offender to submit a DNA test, upon sentencing, before release from prison and upon transfer from another state. The appellant had been charged with a felony but agreed to take a sentence reduction in response to entering a guilty plea. He claimed that the DNA requirement violated his equal protection and should be considered an unreasonable search. The district court and the appellate court rejected that argument, and he appealed to the state's highest court. In Wednesday's opinion Justice Dietzen agreed with the lower court and held such a requirement was not a violation.
The State's legitimate governmental interests outweigh appellant's reduced expectation of privacy following a misdemeanor conviction arising out of the same set of circumstances as his felony charge. We conclude that the physical intrusion of Johnson's bodily integrity to acquire the DNA sample is minimal, especially when compared to the other intrusions Johnson is subjected to as part of his probation.
In the dissent, Justice Meyer stated that the collection of DNA constituted an intrusion upon personal security and dignity and instead found the privacy invasion highly intrusive. He would have found the DNA requirement to be unconstitutional when applied to someone only convicted of a misdemeanor.

In August 2011 a California Appeals Court struck down the state law [JURIST report] that required DNA samples be taken broadly from any adult arrested or charged with a felony. US Attorney General Eric Holder instructed federal prosecutors in November 2010 to use DNA evidence as much as possible [JURIST report], reversing the Bush administration policy. The US District Court for the Eastern District of California upheld the constitutionality [JURIST report] of mandatory DNA collection for all persons arrested or detained under federal authority in May 2009.




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Iraq to take legal action over Haditha killings
Rebecca DiLeonardo on January 26, 2012 12:47 PM ET

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[JURIST] A media adviser to Iraqi Prime Minister Nouri al-Maliki [official website, in Arabic; JURIST news archive] said Thursday that the government will take legal action on behalf of the victims of the November 2005 Haditha killings [JURIST news archive], in which 24 Iraqi civilians were killed. Government spokesman Ali al-Moussawi expressed displeasure [Reuters report] with the outcome of the investigation and prosecutions in the US military court. On Tuesday, US Staff Sgt. Frank Wuterich [advocacy website] pleaded guilty [JURIST report] to the charge of negligent dereliction of duty, making him the only marine convicted of misconduct related to the killings. Eight marines were originally charged in relation to the killings, but in six cases charges were dismissed and one marine was acquitted. Earlier this week, many Iraqis were outraged [Reuters report] by the lenient deal given to Wuterich, whose conviction carries a maximum sentence of three months in jail. Al-Moussawi did not specify what legal action the Iraqi government might take.

Wuterich's guilty plea marks the end of the final court-martial resulting from a five-year investigation into the 2005 Haditha killings. Wuterich was denied a motion to dismiss [JURIST report] his charges in 2010. His trial was postponed in 2008 [JURIST report] after a judge decided to throw out a subpoena for unaired footage of a CBS interview with Wuterich that prosecutors believed could have proven his guilt. Charges against Lt. Colonel Jeffrey Chessani [JURIST news archive] were dropped [JURIST report] in June 2008, the same month 1st Lt. Andrew Grayson [JURIST news archive] was acquitted [JURIST report] of all charges against him relating to the incident. In August 2007, charges against Lance Cpl. Justin Sharratt and Capt. Randy W. Stone were dismissed [JURIST report]. In 2007, an official report on the Haditha incident by US Army Major General Eldon Bargewell showed that there was "serious misconduct" [JURIST report] at all levels of the chain of command.




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UN rights chief concerned over Libya torture allegations
Jamie Reese on January 26, 2012 12:43 PM ET

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[JURIST] UN High Commissioner for Human Rights Navi Pillay [official website] addressed [statement] the UN Security Council Wednesday, expressing concern over alleged current human rights violations in Libya. Pillay first noted that the Libyan National Transitional Council (NTC) [official website] has expressed their commitment to human rights and has taken encouraging steps in that direction in the form of legal reform and new legislation. However, the interim government still has not gained effective control over the revolutionary brigades and a concern remains over the conditions of detention and treatment of detainees held by these brigades:
The [International Committee of the Red Cross] visited over 8,500 detainees in approximately 60 places of detention between March and December 2011. The majority of detainees are accused of being Gaddafi loyalists and include a large number of sub-Saharan African nationals. The lack of oversight by the central authorities creates an environment conducive to torture and ill-treatment. My staff have received alarming reports that this is happening in places of detention that they have visited.
She urged that all detention centers be brought under the control of the Ministry of Justice and the General Prosecutor's Office. Pillay welcomed a commitment to transitional justice to address both abuses of the past and those committed during the conflict.

Allegations of war crimes and human rights violations have been widespread in the aftermath of the Libyan conflict [JURIST backgrounder]. Earlier this month Middle East rights groups alleged human rights violations [JURIST report] and that all parties involved, including the North Atlantic Treaty Organization (NATO) [official website], committed acts ranging from use of excessive force against protesters to cruel and inhuman treatment of prisoners during detention. They also urged support to the Libyan authorities in the implementation of section 12 of the UN Security Council Resolution 2009 [text in PDF]. In September 2011, the Libyan NTC vowed to investigate allegations of human rights after Amnesty International (AI) [advocacy website] published a report [JURIST report] alleging that both sides of the Libya conflict are responsible for human rights abuses and warning the NTC to act quickly to investigate these allegations. In August, Physicians for Human Rights (PHR) [advocacy website] reported [text, PDF] Libyan troops used children as human shields [JURIST report] to deter attacks by NATO. That same month, the Libyan Prime Minister Al Baghdad Ali Al-Mahmoudi requested that the UN create a "high-level commission" to investigate alleged human rights abuses [JURIST report] by NATO.




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South Carolina appeals order blocking portions of immigration law
Jennie Ryan on January 26, 2012 11:44 AM ET

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[JURIST] South Carolina Attorney General Alan Wilson [official website] has filed an appeal in the US Court of Appeals for the Fourth Circuit [official website] asking the court to overturn the decision to block provisions of the state's new controversial immigration law [SB 20]. The state is asking the court to overturn the district court ruling blocking two provisions of the law and to allow the entirety of the law to take effect. The request comes after a judge for the US District Court for the District of South Carolina [official website] placed a hold on the lawsuit [JURIST report] over the immigration law pending the outcome of a similar case to be heard by the US Supreme Court [official website]. The Supreme Court agreed [JURIST report] in December to rule on Arizona's controversial immigration law granting certiorari [JURIST report] in Arizona v. United States [docket] to determine if Arizona's law is preempted by federal law. The South Carolina law was scheduled to take effect on January 1.

In December of last year, a federal judge blocked [JURIST report] portions of the South Carolina law. Judge Richard Gergel blocked the provision that requires police to check immigration status, finding, "[t]his state-mandated scrutiny is without consideration of federal enforcement priorities and unquestionably vastly expands the persons targeted for immigration enforcement action. He also blocked the provision that outlaws harboring or transporting an illegal immigrant, finding a likelihood of irreparable harm. Similar immigration laws are being challenged throughout the US. Also in December, Alabama and Georgia filed motions in the US Court of Appeals for the Eleventh Circuit [official website] seeking to stay proceedings [JURIST report] on challenges to their immigration laws pending the Supreme Court ruling in Arizona v. United States. A challenge is also pending to an immigration law in Utah, and an Indiana law has been blocked [JURIST reports] by a federal judge.




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Romania constitutional court rejects controversial election law
Maureen Cosgrove on January 26, 2012 10:52 AM ET

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[JURIST] The Constitutional Court of Romania [official website, in Romanian] on Wednesday ruled that a law allowing local and parliamentary elections to be held at the same time is unconstitutional. The Romanian Parliament [official website, in Romanian] passed the law in December [AP report], but objections from opposition leaders and anti-government protesters followed. The opposition argued that the law would facilitate fraud, cheating and confusion in the election process, while the government claimed the law would cuts costs by permitting one ballot for two elections. After the ruling, Romanian President Traian Basescu [official website, in Romanian] defended his administration [speech text, in Romanian] amid protests against the government's education, justice, criminal and economic policies.

Romanian elections have garnered discontent in recent years. The high court declared [press release, PDF; in Romanian] incumbent Basescu winner of the country's disputed presidential election [JURIST report] in December 2009. The court unanimously rejected a complaint by Basescu's opponent, Social Democrat Mircea Geoana [campaign website, in Romanian], to declare the results of the runoff election invalid because of allegations of voter fraud and bribery. After the first round of elections in November produced no clear winner, Basescu and Geoana faced a runoff election. Official results showed that Basescu had won by a mere 70,000 votes, garnering 50.3 percent of the total votes, and the court ordered election officials to recount [JURIST report] 138,000 voided ballots. In 2007, Basescu was reinstated [JURIST report] after the constitutional court certified results of a referendum where 74 percent of voters rejected Basescu's impeachment [JURIST report].




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Bosnia war crimes court upholds 31-year sentence for Srebrenica massacre
Julia Zebley on January 26, 2012 8:52 AM ET

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[JURIST] The Court of Bosnia and Herzegovina (BiH) [official website] on Wednesday upheld the conviction [JURIST report] and 31-year sentence of Radomir Vukovic for his part in the 1995 Srebrenica massacre during the Bosnian civil war [JURIST news archives]. While Vukoic's appeal was denied, Zoran Tomic won his appeal on a lack of evidence. As a member of the 2nd Sekovici Special Police Detachment, the court found that Vukovic participated in executing 1,000 Bosniak men who were imprisoned in a warehouse. This was Vukovic's final appeal.

Earlier this week, convicted Serbian war criminal Radovan Stankovic [JURIST report] was arrested in BiH after being on the run since May 2007 when he escaped from a Bosnian prison. Stankovic was convicted of multiple war crimes [JURIST report] in 2006, including rape, enslavement and torture. Last month, the US extradited Rasema Handanovic [JURIST report], a woman accused of killing Bosnian Croat civilians during the Bosnian Civil War. A number of cases have been opened in relation to the Bosnian Civil War. The Court of BiH confirmed the indictment [JURIST report] of former police officer Bozidar Kuvelja in March for his role in a 1995 massacre. In February, French authorities arrested Milorad Momic [JURIST report] under an international arrest warrant for his suspected involvement in war crimes. Last August, Spanish officials extradited accused Montenegrin war criminal [JURIST report] Veselin Vlahovic, known as the "monster of Grbavica," to Sarajevo.




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Illinois high court to allow cameras in circuit courts
Max Slater on January 25, 2012 8:30 PM ET

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[JURIST] The Illinois Supreme Court [official website] on Tuesday authorized [order, PDF] the use of television cameras and other recording devices in state courts [press release, PDF]. The order permits "extended media coverage" in courtrooms, which entails broadcasting of proceedings by the use of television, radio, photographic or recording equipment for the purpose of gathering and disseminating news to the public. While Illinois has permitted the use of news cameras in its Supreme Court and appellate courts since 1983, it has not allowed news cameras in trial courts until this decision. Illinois Supreme Court Chief Justice Thomas Kilbride championed the new policy:
This is another step to bring more transparency and more accountability to the Illinois court system. The provisions of this new policy keep discretion in the chief circuit judge and the trial judge to assure that a fair and impartial trial is not compromised, yet affords a closer look at the workings of our court system to the public through the eyes of the electronic news media and news photographers.
Prior to the order, Illinois was one of 14 states that either banned or severely restricted camera use in trial courtrooms.

The presence of cameras and other recording devices in courtrooms has generated substantial controversy both in the US and abroad. In December, the US Senate Judiciary Committee returned to the longstanding debate [JURIST report] over whether to televise the proceedings of the US Supreme Court [official website], including whether Congress, as an equal branch of government, has the authority to require the court to admit cameras. In November, C-SPAN [official website] asked [letter text, PDF] the US Supreme Court to drop its ban on cameras in the courtroom when it hears arguments over the Patient Protection and Affordable Care Act (PPACA) [JURIST news archive]. In September, the UK Justice Secretary announced [JURIST report] that cameras would be allowed in UK and Wales courts in an effort to increase judicial transparency. In October 2010, a coalition of 37 public interest groups urged the US Senate to permit television coverage of Supreme Court proceedings [JURIST report]. In September 2010, US Federal judges reached an agreement [JURIST report] on a pilot project to allow certain civil trials to be televised.




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Montenegro court sentences four former Yugoslav army Soldiers
Rebecca DiLeonardo on January 25, 2012 1:01 PM ET

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[JURIST] A court in Montenegro on Wednesday sentenced four former Yugoslav People's Army (JNA) soldiers to up to four years in prison for war crimes committed during the Croatian conflict. In a retrial of a 2010 case, the court found the four defendants guilty of torturing prisoners [RFE/RL report] at a detention camp in Morinj between 1991 and 1992. The defendants were four of the six lower-ranking JNA soldiers who were convicted in May 2010 [Reuters report] for the torture of Croatian prisoners detained during a conflict in Dubrovnik. This decision was overturned on appeal [SETimes.com report], and two defendants were acquitted in the retrial.

The International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] continues to prosecute former high-ranking Yugoslav army soldiers for war crimes. Last September, ex-Yugoslav army chief Momcilo Perisic [ICTY profile, PDF; JURIST news archive] was convicted for crimes against humanity and war crimes [JURIST report], committed during the wars in Bosnia and Croatia and sentenced to 27 years in prison. Former Yugoslav National Army officer Miroslav Radic [Trial Watch backgrounder], was acquitted of war crimes charges [JURIST report] brought by the ICTY in 2007. In 2009, Radic sued Serbia [JURIST report] for the four years and six months he was detained during his trial by the ICTY.




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UN refuses to replace ECCC judge in Khmer Rouge trial
Jennie Ryan on January 25, 2012 11:46 AM ET

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[JURIST] The United Nations (UN) [official website] on Wednesday refused to replace a judge presiding over investigations at the Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website] after Cambodia attempted to block him. Laurent Kasper-Ansermet is the judge tasked with investigating two possible suspects believed to be involved in the deaths of around 1.7 million people during the reign of the Khmer Rouge [BBC backgrounder] regime. The investigation relates to ECCC cases 003 and 004 [materials]. The Cambodian government strongly opposes the investigation into the suspects' involvement with the Khmer Rouge. Cambodia attempted to block Kasper-Ansermet's return to the country under an agreement between the UN and the Cambodian government. Cambodian officials said they believe they have the authority to reject investigating judges they deem unsuitable. Cambodia says Kasper-Ansermet is unsuitable to continue the investigation [Reuters report] because he used his Twitter account to comment on the cases. According to the UN, the agreement between the Cambodian government and the UN gives "full authority to operate as the international investigating judge."

Last week, the UN expressed concern [JURIST report] over Cambodia's decision to not appoint the reserve judge Kasper-Ansermet to the ECCC after the previous judge, Siegfried Blunk, resigned [JURIST report] in October. ECCC judges, including Blunk, have been criticized for allegedly failing to conduct impartial investigations. Cambodia has argued that the trial of former Khmer Rouge leaders is a Cambodian issue and should not be a matter of international concern. Also in October, defense lawyers for accused Khmer Rouge leader Nuon Chea filed a lawsuit [JURIST report] against Cambodian 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 his right to a fair trial. In September, the ECCC ordered the trials be split into a series of smaller trials [JURIST report].




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Maldives lawyers seek ICC intervention over detained judge
Dan Taglioli on January 25, 2012 11:14 AM ET

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[JURIST] A group of Maldives lawyers this week submitted to the International Criminal Court (ICC) [official website] the controversial case of detained Maldives Judge Abdulla Mohamed, calling Mohamed's continued detention a violation of the International Convention on the Protection of all Persons against Enforced Disappearance [text]. The legal team is contesting [Minivan News report] the conditions of Mohamed's arrest and subsequent detention [JURIST report] by the Maldives National Defence Force (MNDF) after the judge attempted to block his own High Court police summons pertaining to allegations of corruption and political bias in his professional conduct. The national Judicial Services Commission (JSC) has stated that the MNDF does not have legal authority over the judiciary [HaveeruOnline report], a responsibility claimed exclusively by the JSC itself. On Tuesday the Maldives Attorney General and JSC member Abdulla Muizzu gave his first interview since the arrest [HaveeruOnline report], but chose to confine his remarks to addressing the JSC's failure to effectively address various complaints against Mohamed's conduct, refusing entirely to address the constitutional issues pertaining to the judge's actual arrest. The JSC has appealed an earlier Civil Court injunction [Minivan News report] preventing the commission from taking action against Mohamed at the High Court, and is now investigating all previously submitted complaints against Mohamed. Violent anti-government protests have left several injured [HaveeruOnline report], including a journalist badly beaten Monday at a rally near the camp of the ruling Maldivian Democratic Party. While opposition parties have termed Mohamed's arrest a "kidnapping" and claimed his continued detention constitutes a "crime against humanity" under the ICC's jurisdiction, the ICC limits itself under the Rome Statute to only the most serious international crimes.

This week the Maldives Minister of Foreign Affairs [official website] requested the UN help resolve [JURIST report] the situation, which they are calling a judicial system failure. The Maldives has faced ongoing political difficulties following the adoption of its constitution [JURIST report] in late 2008. President Mohamed Nasheed [official website] defeated longtime political opponent Maumoon Abdul Gayoom [BBC profile], who had jailed him numerous times during his 30-year rule. However, opposition legislators have blocked the ruling party's legislative agenda, leaving certain crucial provisions of the new constitutional system unestablished. This resulted in the resignation of Nasheed's entire cabinet [BBC report] in June 2010. The Maldives Constitution [text, PDF] provides for multi-party elections, an independent judiciary and grants more authority to the legislature. It also enumerates fundamental rights of citizens and establishes several special commissions on issues relating to human rights and corruption. The new constitution was drafted in response to international criticism [AI report, PDF] of 2003 government actions against protesters of prison conditions in the country.




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Federal court rules Montana medical marijuana law does not shield providers from federal prosecution
Katherine Getty on January 25, 2012 10:26 AM ET

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[JURIST] A federal judge in the US District Court for the District of Montana [official website] on Friday ruled [opinion, PDF] that the state's medical marijuana [JURIST archive] law does not protect providers of the drug from federal prosecution. Judge Donald Molloy [official profile] dismissed a civil lawsuit [AP report] brought by 14 medical marijuana providers who had all been raided by federal authorities in the last year. The plaintiffs argued that the federal raids violated their protection under the state law. Molloy, however, found that providers could be prosecuted under federal law, following the precedent set by the Supreme Court in Gonzales v. Raich [opinion] in 2005. In that case, the Court held that the Supremacy Clause applies to medical marijuana laws. The Montana law [SB 423, text], which was enacted in 2011, allowed for the cultivation and production of the drug as long as a registration card was obtained. Molloy held that the Supremacy Clause allowed federal law to trump the state law.

Federal courts have been cracking down on state medical marijuana laws recently. Earlier this month the American Civil Liberties Union (ACLU) [advocacy website] was granted a motion to dismiss [JURIST report] a lawsuit brought by the Arizona Governor. The Governor believed an Arizona medical marijuana law placed lawmakers at risk of federal prosecution for implementing the law. In October, medical marijuana advocates filed suit [JURIST report] in a California federal court seeking relief against the federal government for its crackdown on marijuana dispensaries in the state. In June, a judge in Ontario stayed a ruling [JURIST report] finding that the country's marijuana laws were unconstitutional. In January 2010, the California Supreme Court [official website] overturned [JURIST report] a 2003 law limiting the amount of marijuana that may be possessed under the state's Medical Marijuana Program (MMP) [materials].




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Serbia rights group alleges war crimes by new military chief
Jerry Votava on January 25, 2012 8:32 AM ET

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[JURIST] The Humanitarian Law Center (HLC) [advocacy website], a Serbian human rights group, alleged [press release, in Serbian] on Tuesday that Serbian General Ljubisa Dikovic [official profile, in Serbian] committed war crimes [JURIST news archive] in 1998 and 1999 during the war in Kosovo [JURIST news archive]. The HLC pointed to evidence uncovered during the trial of former Serbian president Milan Milutinovic by the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website; JURIST news archive]. They noted that Dikovic was in command of the 37th Motorized Brigade, in whose zone of control the ICTY found a "number of heavy and massive war crimes committed." The HLC alleged that, although Dikovic had a responsibility to prevent the war crimes, he did not act.

The ICTY is currently preparing for the trial of former Serbian general and alleged war criminal Ratko Mladic [ICTY backgrounder, PDF; JURIST news archive]. The trial is set to begin in March [JURIST report]. The ICTY had previously tried [JURIST news archive] former Yugoslav President Slobodan Milosevic [JURIST news archive], but ended that trial after his death [JURIST report] in custody in 2006.




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Egypt military leaders announce partial lift of state of emergency
Jerry Votava on January 25, 2012 7:42 AM ET

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[JURIST] Field Marshal Hussein Tantawi, head of Egypt's Supreme Council of the Armed Forces (SCAF) [NYT backgrounder] announced Tuesday that Eygpt's state of emergency [JURIST news archive] that has been in effect for nearly 30 years would be lifted later this week. Tantawi did indicate that some of the powers from the state of emergency would remain in effect [AP report] against certain crimes. Tantawi made the announcement [BBC report] on the anniversary of the start of the Egyptian revolution [JURIST news archive], which led former Egyptian president Hosni Mubarak [Al Jazeera profile; JURIST news archive] to step down from the office [JURIST report] in February of last year. The SCAF had previously tried to lift the state of emergency in August but reinstated in a month later after an attack on the Israeli Embassy [JURIST reports].

Last week, a report from Human Rights Watch [advocacy website] called on [JURIST report] Egypt's newly elected parliament to pursue an agenda to reform nine areas of Egyptian law that impede freedom and restrict rights. Among the suggestions was a call to lift the state of emergency. Earlier in January, Egyptian prosecutors began their case [JURIST report] against Mubarak, who is facing charges of complicity by ordering the killings of at least 840 protesters [JURIST report] during the revolution. Some commentators have recommended [JURIST op-ed] that the SCAF separate its economic and political power to allow for greater prosperity in Egypt.




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Minnesota appeals court remands same-sex marriage lawsuit
Max Slater on January 24, 2012 1:23 PM ET

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[JURIST] The Minnesota Court of Appeals [official website] ruled [opinion, PDF] Monday that a trial court must review a lawsuit challenging a Minnesota law prohibiting gay marriage [Section 517.03 text]. The plaintiffs are three same-sex couples who were married in Canada and had been denied marriage licenses by Minnesota due to a statewide ban on same-sex marriage [JURIST news archive]. Plaintiffs argued [appellate brief, PDF] that Minnesota violated their equal protection rights by refusing to issue them marriage licenses. The appeals remanded the case to the trial court because the trial court had not adequately addressed plaintiffs' equal protection rights as well as a 1971 Minnesota case [Baker v. Nelson, PDF] that upheld the state's ban on same-sex marriage:
The district court failed to address appellants' challenges under the Minnesota Constitution. A proper analysis is necessary especially because the Minnesota rational-basis test for determining whether equal-protection rights have been violated is more stringent than the federal test. Additionally, the supreme court in Baker specifically stated that there was no guidance from decisions from the United States Supreme Court regarding whether the right to marry if a fundamental right of all persons and whether restricting marriage based solely on sex is "irrational and invidiously discriminatory."
No date has been set for the ensuing trial in district court.

It remains unclear if the court of appeals' decision to remand the case to the district court will help or hurt the plaintiffs. Phil Duran, the legal director of the gay rights group OutFront Minnesota [official website] declared [press release] that the decision could be a setback for same-sex marriage rights because the case could eventually be decided by the deeply conservative Minnesota Supreme Court. Douglas Benson, one of the plaintiffs in the case, took a more optimistic view, saying that the court of appeals' decision gives the plaintiffs momentum going forward in court [Minneapolis Star Tribune report]. Same-sex marriage is a particularly contentious issue in Minnesota this year, as voters will decide in November whether to accept or reject a constitutional amendment banning same-sex marriage [HF 1613 text; JURIST report].




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UN rights chief: Iraq should stop all executions
Sung Un Kim on January 24, 2012 1:14 PM ET

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[JURIST] UN High Commissioner for Human Rights Navi Pillay [official website] on Tuesday condemned [press release] Iraq's execution of 34 individuals, including two women, last week. All 34 executions occurred on a single day for crimes described as terrorism-related offenses [Iraq Ministry of Justice, in Arabic]. Iraq maintains the death penalty for even non-fatal crimes, but there has been no report of a single case in which the death penalty was pardoned, according to Pillay:
The total number of individuals sentenced to death in Iraq since 2004 is believed to stand at more than 1,200. The total number actually executed since then is not known, although at least 63 individuals are thought to have been executed in the past two months alone (since 16 November). There are around 48 crimes for which the death penalty can be imposed in Iraq, including a number of non-fatal crimes such as—under certain circumstances—damage to public property.
Iraq's current system of death penalty and its far-reaching coverage of offenses that are subject to death penalty creates doubt on the due process and fairness of trials in the country. The High Commissioner urged the government to establish an immediate moratorium on the use of the death penalty.

In 2007, the UN General Assembly [official website] approved a resolution calling for a worldwide moratorium [JURIST report] on the death penalty. The resolution was reaffirmed twice by resolutions A/RES/63/168 and A/RES/65/206 [materials] in 2008 and 2010, respectively. It was criticized by countries [JURIST report] that supported the use of death penalty [JURIST news archive], alleging that the resolution would infringe nations' sovereignty. Iraq, one of the countries that did not implement the moratorium, has been subject to criticism for violating various human rights including unlawfully detaining and repeatedly torturing thousands of detainees without warrants [JURIST reports].




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Fourth Circuit upholds dismissal of Padilla unlawful detention suit
Brandon Gatto on January 24, 2012 1:14 PM ET

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[JURIST] The US Court of Appeals for the Fourth Circuit on Monday upheld the dismissal [opinion, PDF] of a lawsuit brought by US citizen and convicted terrorist Jose Padilla [BBC profile; JURIST news archive], who alleged that he had been illegally detained at a military jail in South Carolina. Claiming nominal monetary redress against Secretary of Defense Leon Panetta [official profile] and former secretary Donald Rumsfeld [BBC profile], among others, Padilla argued that the Defense Department's methods of detaining him as an "enemy combatant" were unconstitutional. The Fourth Circuit disagreed and held that Padilla could not use a lawsuit seeking monetary damages to review an issue involving national security and that the judiciary was not the proper forum to rule on the legislature-adopted policies responsible for his detention. The court reasoned that allowing such lawsuits "would expose past executive deliberations affecting sensitive matters of national security to the prospect of searching judicial scrutiny." The American Civil Liberties Union (ACLU) [advocacy website], which brought the suit on Padilla's behalf, was quick to express its discontent with the ruling [statement]:
Today is a sad day for the rule of law and for those who believe that the courts should protect American citizens from torture by their own government. By dismissing this lawsuit, the appeals court handed the government a blank check to commit any abuse in the name of national security, even the brutal torture of a US citizen on US soil. This impunity is not only anathema to a democracy governed by laws, but contrary to history's lesson that in times of fear our values are a strength, not a hindrance.
Padilla's case, filed pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics [opinion], was originally dismissed [JURIST report] in February by the US District Court for the District of South Carolina [official website], which ruled that the defendants had qualified immunity under the circumstances. Padilla was arrested in 2002 at Chicago's O'Hare International Airport and thereafter detained as an enemy combatant. He was convicted on terrorism charges in 2007 and sentenced [JURIST reports] to 17 years in prison.

This is the latest case involving the liability of government officials for their actions in the US War on Terror. In August, the US Court of Appeals for the Seventh Circuit [official website] ruled [JURIST report] that a torture lawsuit against former secretary Rumsfeld by two American citizens may proceed under the cause of action recognized in Bivens. Also in August, the US District Court for the District of Columbia [official website] allowed a lawsuit to be brought against Rumsfeld [JURIST report] by a former US military contractor who alleged that he had been tortured while imprisoned in Iraq. By contrast, the US Court of Appeals for the District of Columbia Circuit [official website] in 2011 upheld the dismissal [JURIST report] of a suit against Rumsfeld brought by Afghan and Iraqi citizens who claimed that they were illegally detained and tortured. Also in 2011, the US Supreme Court [official website] ruled that former US attorney general John Ashcroft [BBC profile; JURIST news archive] was immune from a suit [JURIST report] involving allegedly unconstitutional witness detention, and that he should be entitled to absolute immunity where there is no clear violation of established law.




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Canada deports Rwanda war crimes suspect
Hillary Stemple on January 24, 2012 12:28 PM ET

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[JURIST] The Canadian government on Monday deported Rwandan war crimes suspect Leon Mugesera, after a Quebec Superior Court [official website] judge ruled that the court did not have jurisdiction to rule on immigration cases. Mugesera, who has been fighting deportation from Canada since 1995, is a former Rwandan politician accused of delivering a speech in 1992 urging fellow Hutus to murder members of the Tutsi minority. Many Rwandans believe Mugesera's speech directly led to the mass killings [BBC report] which occurred during the 1994 Rwandan genocide [JURIST news archive]. The Canadian government originally sought to deport Mugesera in 1995 after they determined that he omitted material facts in his application for asylum. The government also determined that Mugesera should be deported because there was a reasonable basis to believe he had incited murder, genocide and crimes against humanity. In 2005, the Canadian Supreme Court ruled that Mugesera must be deported, although the Canadian government later indicated he would not be extradited unless the Rwandan government guaranteed not to seek the death penalty [JURIST reports] in the event of a conviction. In a final effort to avoid deportation, which some commentators had called "inevitable" [JURIST op-ed], Mugesera appealed to the UN Committee Against Torture [official website], claiming he would face torture and possible death if removed to Rwanda [Globe and Mail report]. Mugesera also asked the Canadian courts not to rule on his final appeals until the UN committee had reached its decision. Superior Court Judge Michel Delorme ruled that immigration issues must be determined by the federal courts [CTV Montreal report], not provincial courts, and that agreeing to hear the case would lead to forum shopping. Mugesera was deported hours after the court issued its final ruling.

While the Canadian government chose to pursue deportation of Mugesera, they have the authority under the country's Crimes Against Humanity and War Crimes Act [text, PDF] to prosecute individuals living in Canada who are suspected of involvement with genocide. In November 2009, Canadian prosecutors announced they were charging [JURIST report] Rwandan national Jacques Mungwarere under the law for his potential involvement in the Rwandan genocide. Mungwarere was the second man charged under the act. The first man charged under the act was Desire Munyaneza. In October 2009, Munyaneza was sentenced to life imprisonment [JURIST report] for war crimes committed during the Rwandan genocide. Munyaneza was convicted [JURIST report] in May 2009 of seven counts of genocide, crimes against humanity, and war crimes under the act. He was arrested [JURIST report] in 2005 by Canadian police after a five-year investigation. The trial, which was briefly postponed [JURIST report] after Munyaneza was beaten by a fellow prison inmate, lasted two years and included evidence from multiple nations. International legal observers expect Munyaneza's trial to set precedent for future war crimes litigation.




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Final marine tried in Haditha killings pleads guilty
Jaimie Cremeans on January 24, 2012 11:10 AM ET

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[JURIST] US Staff Sgt. Frank Wuterich [advocacy website] pleaded guilty [USMC case materials] Monday to the charge of negligent dereliction of duty, ending the final court-martial resulting from a five-year investigation into the 2005 deaths of 24 Iraqi civilians [BBC backgrounder]. Wuterich was charged with voluntary manslaughter, aggravated assault, reckless endangerment, obstruction of justice and dereliction of duty in court-martial proceedings that began less than two weeks ago. All of the charges except dereliction of duty have been dropped in return for his guilty plea. Wuterich was accused of overreacting [AFP report] to the death of another marine in a roadside bombing in Haditha, Iraq, and allegedly ordering his men to 'shoot first and ask questions later.' He sent his men into nearby houses to search for insurgents, which resulted in the deaths of the Iraqi civilians, including 10 women and children. Seven other marines were charged in 2006 with crimes relating to the incident, but in six cases charges were dismissed and one marine was acquitted. Wuterich will be sentenced by a military judge at a later date.

Wuterich was denied a motion to dismiss [JURIST report] his charges in 2010. His trial was postponed in 2008 [JURIST report] after a judge decided to throw out a subpoena for unaired footage of a CBS interview with Wuterich that prosecutors believed could have proven his guilt. Charges against Lt. Colonel Jeffrey Chessani [JURIST news archive] were dropped [JURIST report] in June 2008, the same month 1st Lt. Andrew Grayson [JURIST news archive] was acquitted [JURIST report] of all charges against him relating to the incident. In August 2007, charges against Lance Cpl. Justin Sharratt and Capt. Randy W. Stone were dismissed [JURIST report]. In 2007, an official report on the Haditha incident by US Army Major General Eldon Bargewell showed that there was "serious misconduct" [JURIST report] at all levels of the chain of command.




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Spain high court begins second trial of judge Garzon
Andrea Bottorff on January 24, 2012 11:04 AM ET

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[JURIST] The second trial of Spanish Judge Baltasar Garzon [BBC profile; JURIST news archive] began on Tuesday before the Spanish Supreme Court [official website, in Spanish]. Garzon has been charged with abusing power [JURIST report] by opening an investigation into war crimes allegedly committed under Francisco Franco [BBC backgrounder] during the Spanish Civil War. In 2008, Garzon ordered the exhumation [JURIST report] of 19 mass graves in Spain in order to assemble a definitive national registry of Civil War victims, despite a 1977 law that provides amnesty for Franco-era crimes. Garzon has consistently defended [JURIST report] the validity of the investigation by insisting that he acted within the bounds of the law and appropriately applied the law at all times. Rights group Amnesty International (AI) [advocacy website] has condemned the trial [news release], calling it "a blow to human rights and efforts to obtain justice." The case is expected to last for weeks [Guardian report], and civil war survivors or relatives of those killed will present evidence. If convicted, Garzon could face a suspension of up to 20 years.

Last March, Garzon filed a petition [JURIST report] with the European Court of Human Rights (ECHR) [official website], challenging the 2010 abuse of power charges, for which he was suspended [JURIST report]. His petition follows the September 2010 decision of the Criminal Chamber of the Spanish Supreme Court, which unanimously confirmed [JURIST report] a lower court order that Garzon abused his power and must face trial. Garzon is widely known for using universal jurisdiction [AI backgrounder; JURIST news archive] extensively in the past to bring several high-profile rights cases, including those against Osama bin Laden and former Chilean dictator Augusto Pinochet. He is also facing two other trials, including one trial that began last week involving charges that he ordered the placement of wiretaps in jailhouses [JURIST report] to record conversations between inmates and their lawyers. The third trial, which has not started, involves bribery charges over money Garzon received for seminars conducted in the US.




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France senate passes genocide denial ban
Andrea Bottorff on January 24, 2012 10:11 AM ET

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[JURIST] The French Senate [official website, in French] on Monday passed a bill that outlaws denial of genocide crimes [materials, in French], including the World War I-era killings of more than one million Armenians by Turkish soldiers. The Senate voted 126-86 [press release, in French] in favor of the bill, despite a Senate committee rejecting the bill [JURIST report] last week and raising constitutionality concerns. The French National Assembly [official website, in French] last month approved the bill [JURIST report], which imposes a one-year prison term, a 45,000-euro fine, or both, on individuals who publicly trivialize or deny genocide crimes. The measure has sparked animosity in Turkey, which does not classify the killings as a genocide. Turkish Prime Minister Tayyip Erdogan [official website, in Turkish] Tuesday criticized the French parliament [Reuters report] and the proposed law, calling it "discriminatory and racist." The bill now moves to French President Nicolas Sarkozy [official profile, in French; JURIST news archive] for final approval before becoming law.

The Armenian genocide is also a contentious issue in US law and politics. In November the US Court of Appeals for the Ninth Circuit [official website] decided to revisit a case [JURIST report] to determine whether a California law declaring Armenian genocide in Turkey conflicts with US foreign policy. 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. Erdogan condemned the resolution, and the Turkish government recalled its ambassador to the US.




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Serbian war criminal arrested after more than 4 years on the run
Jaimie Cremeans on January 24, 2012 8:10 AM ET

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[JURIST] Convicted Serbian war criminal Radovan Stankovic [Court of BiH materials] was arrested Saturday in Bosnia and Herzegovina (BiH) after being on the run since May 2007 when he escaped from a Bosnia prison. Stankovic was convicted of multiple war crimes [JURIST report] in 2006, including rape, enslavement and torture. International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] prosecutor Serge Brammertz welcomed the arrest [press release], saying it "is significant for the victims of the grave crimes he has been convicted for." He also said he hopes this arrest "reflects an increased commitment of the authorities of Bosnia and Herzegovina to support the process of bringing to justice those responsible for the grave crimes committed on their territory in the early 1990s."

Stankovic was serving a 20-year prison sentence when he escaped [JURIST report]. He was the first prisoner to be transferred [JURIST report] from the ICTY to the State Court of BiH [official website], and was also the first transferee to be convicted there. He was convicted of war crimes committed in Foca, Bosnia, from 1992 to 1995.




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Supreme Court rules on sex offender registration act
Jaclyn Belczyk on January 23, 2012 2:49 PM ET

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[JURIST] The US Supreme Court [official website] ruled 7-2 [opinion, PDF] Monday in Reynolds v. United States [SCOTUSblog backgrounder] that the Sex Offender Registration and Notification Act (SORNA) [final guidelines, PDF] does not require pre-act offenders to register before the attorney general validly specifies that the act's registration provisions apply to them. The attorney general determined in 2007 that all states would have to follow the federal rule to keep registration current. Billy Joe Reynolds pleaded guilty for failure to register his new address but attempted to challenge the application of SORNA against him because his sex offender conviction in 2001 predated the attorney general's rule change. The US Court of Appeals for the Third Circuit ruled [opinion, PDF] that this did not give him standing to challenge the rule's application. In an opinion delivered by Justice Stephen Breyer, the Supreme Court reversed:
The Act defines the term "sex offender" as including these pre-Act offenders. ... It says that "[a] sex offender shall register." ... And it further says that "[t]he Attorney General shall have the authority to specify the applicability of the [registration] requirements ... to sex offenders convicted before the enactment of this chapter ...." ... In our view, these provisions, read together, mean that the Act's registration requirements do not apply to pre-Act offenders until the Attorney General specifies that they do apply.
Justice Antonin Scalia filed a dissenting opinion, joined by Justice Ruth Bader Ginsburg.

In June, the Supreme Court ruled in US v. Juvenile Male [JURIST report] that the US Court of Appeals for the Ninth Circuit had no authority to rule that the requirements SORNA violate the ex post facto [Cornell LII backgrounder] clause of the Constitution when applied to juveniles adjudicated as delinquent before SORNA's enactment. In 2010, the Supreme Court ruled in Carr v. United States [JURIST report] that the failure to register provision of SORNA does not apply retroactively to offenses occurring before SORNA's enactment.




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Maldives seeks UN help to resolve detention of senior judge
Jamie Reese on January 23, 2012 1:26 PM ET

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[JURIST] The Maldives Minister of Foreign Affairs [official website] asked the UN Sunday to help them resolve [press release] what they are calling a judicial system failure over the detention of senior criminal court Judge Abdulla Mohamed. Mohamed was arrested for corruption [JURIST report] in an unprecedented move by the military, following the ruling to release a government critic. The arrest has sparked street protests and prompted all the country's courts to boycott sessions. The country's prosecutor general's office has said that under the constitution a judge can be arrested only after a supreme court decision to do so, and the supreme court, prosecutor general's office and judicial services commission (JSC) have all issued statements calling the arrest illegal and requesting Mohamed's release. The vice president has called for Mohamed's release and called on the JSC to prevent the judge from sitting [press release] until the complaints against him are resolved.

The Maldives has faced ongoing political difficulties following the adoption of its constitution [JURIST report] in late 2008. President Mohamed Nasheed defeated longtime political opponent Maumoon Abdul Gayoon [BBC profile], who had jailed him numerous times during his 30-year rule. However, opposition legislators have blocked the ruling party's legislative agenda, leaving certain crucial provisions of the new constitutional system unestablished. This resulted in the resignation of Nasheed's entire cabinet [BBC report] in June 2010. The Maldives Constitution [text, PDF] provides for multi-party elections, an independent judiciary and grants more authority to the legislature. It also enumerates fundamental rights of citizens and establishes several special commissions on issues relating to human rights and corruption.




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UN rights chief urges US to close Guantanamo
Jamie Reese on January 23, 2012 12:34 PM ET

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[JURIST] UN High Commissioner for Human Rights Navi Pillay [official website] expressed disappointment [press release] Monday that the US government has failed to close the Guantanamo Bay [JURIST backgrounder] detention facility. President Barack Obama ordered the facility closed [JURIST report] by January 2010, but congressional opposition and administrative setbacks [JURIST reports] prevented the administration from meeting the deadline. In addition, the recently signed [JURIST report] National Defense Authorization Act for 2012 [HR 1540, PDF] effectively codifies indefinite military detention without charge or trial. Pillay said:
While fully recognizing the right and duty of states to protect their people and territory from terrorist acts, I remind all branches of the US Government of their obligation under international human rights law to ensure that individuals deprived of their liberty can have the lawfulness of their detention reviewed before a court. Where credible evidence exists against Guantanamo detainees, they should be charged and prosecuted. Otherwise, they must be released.
She also noted that international law requires investigation of alleged human rights violations, which includes the actions that allegedly took place at Guantanmo Bay. Pillay urged the US Congress to take steps enabling the Obama adminstration to close the facility.

January marks the tenth anniversary of operations at Guantanamo Bay [JURIST report]. The first detainees arrived in 2002 as "enemy combatants" in the War on Terror declared after 9/11 [JURIST backgrounder]. There are currently 171 detainees [NYT docket] being held at Guantanamo. The Obama administration originally wanted suspected terrorists to be tried before a federal civilian court, but changed its position after Congress imposed a series of restrictions [JURIST reports] barring the transfer of detainees to the US despite repeated appeals from rights groups to utilize civilian courts over military commissions. In 2010, Attorney General Eric Holder [official website] stated that the main goal of the administration is to hold the people responsible [JURIST report] for 9/11 accountable in the most effective way possible.




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Supreme Court rules federal law preempts state slaughterhouse regulation
Andrea Bottorff on January 23, 2012 11:47 AM ET

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[JURIST] The US Supreme Court [official website] ruled unanimously [opinion, PDF] Monday in National Meat Association v. Harris [SCOTUSblog backgrounder] that the Federal Meat Inspection Act (FMIA) [text], which requires observation of animals that are unable to walk for possible disease, preempts a subsequent California law [Cal Pen Code § 599f text] requiring slaughterhouses to "immediately euthanize" on its premises any such animals. The court ruled that the FMIA preemption clause prohibits states from creating and enforcing laws that fall within the scope of the federal requirements, even if the state law does not conflict with the federal law:
The FMIA regulates slaughterhouses' handling and treatment of nonambulatory pigs from the moment of their delivery through the end of the meat production process. California's §599f endeavors to regulate the same thing, at the same time, in the same place—except by imposing different requirements. The FMIA expressly preempts such a state law.
The court reversed the US Court of Appeals for the Ninth Circuit ruling [opinion, PDF] that the California law was not preempted.

The court heard oral arguments [JURIST report] in the case in November and seemed skeptical that there was no overlap in the purposes of the two laws. The court granted certiorari [JURIST report] in the case in June. The provisions of the California law were considered and expressly rejected by federal regulators because they eliminate certain federally required ante-mortem inspection of possibly diseased animals. The California legislature enacted the law to control the treatment of nonambulatory animals after a 2008 undercover video [warning: graphic content] released by the Humane Society of the United States [advocacy website] showed slaughterhouse employees dragging, kicking and applying electric shocks to sick animals to move them.




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Supreme Court upholds emergency aid exception to Fourth Amendment
Andrea Bottorff on January 23, 2012 10:41 AM ET

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[JURIST] The US Supreme Court [official website] issued a per curiam opinion [text, PDF] Monday in Ryburn v. Huff [SCOTUSblog backgrounder] allowing police officers to enter a private residence without a warrant if they have a reason to anticipate violence. The parents of a high school student brought the suit, arguing that the police department violated the Fourth Amendment [text] when officers entered their home without a warrant. The officers arrived at the home after the student's principal asked them to investigate the student's alleged shooting threat. The student's mother resisted answering the officers' questions, including whether there was a weapon in the home. When the mother turned away from the police and re-entered the home, the officers followed her inside and left after determining that there was no threat. The court relied on its 2006 ruling in Brigham City v. Stuart [opinion, PDF] to conclude that the officers correctly applied the emergency aid exception to the Fourth Amendment:
In sum, reasonable police officers in petitioners' position could have come to the conclusion that the Fourth Amendment permitted them to enter the Huff residence if there was an objectively reasonable basis for fearing that violence was imminent. And a reasonable officer could have come to such a conclusion based on the facts...
The decision reversed the US Court of Appeals for the Ninth Circuit, which ruled that the student's mother exercised her right to end the conversation with the police and that the officers could not have reasonably believed that there was an imminent threat [opinion, PDF] inside the home.

The court also upheld the emergency aid exception to the Fourth Amendment in its 2009 ruling in Michigan v. Fisher [opinion, PDF], which reversed and remanded [JURIST report] a Michigan Court of Appeals decision that found officers violated a defendant's Fourth Amendment rights when they entered his home. The case arose when officers called to the home of Jeremy Fisher found a dented vehicle outside the home and blood on the vehicle and on clothing inside the vehicle. They observed Fisher through a window throwing objects and one of the officers entered the home, at which time Fisher pointed a rifle at the officer. Fisher was charged with assault and possession of a firearm during a felony and sought to suppress the officer's statement, arguing that the entry was illegal.




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Croatia citizens vote to join EU
Sarah Posner on January 23, 2012 10:31 AM ET

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[JURIST] Croatian citizens voted in favor [press release, PDF] of joining the EU on Sunday, despite poor turnout for the referendum. With nearly all of the ballots counted [AP report], 66 percent voted in favor of Croatia's membership in the EU with 33 percent voting against. The remaining 1 percent of the ballots were invalid. Approximately 47 percent of eligible voters participated in the decision. Turnout was among the lowest of EU member states that held accession referendums prior to joining the EU. In response to the referendum, the EU released a statement: "with this vote, Croatia's citizens have given their endorsement to European integration. We congratulate Croatia and its people on their choice: EU membership will open up new opportunities for them and help secure the stability and prosperity of their nation." Croatia will become the EU's twenty-eighth member on July 1, 2013.

Last month, the Croatian government signed a treaty [JURIST report] to finalize its EU accession. The signing ceremony consisted of speeches by leaders of the EU and Croatia, as well as signing of the treaty by the 27 other member countries. The EU gave final approval [JURIST report] to Croatian membership in June after six years of negotiations. The EU suspended accession talks [JURIST report] in 2005 when it felt Croatia was not cooperating fully with International Criminal Tribunal for the former Yugoslavia investigations into war crimes against its former military officers.




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Supreme Court rules GPS tracking of vehicle constitutes search
Jaclyn Belczyk on January 23, 2012 10:15 AM ET

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[JURIST] The US Supreme Court [official website] ruled [opinion, PDF] Monday in United States v. Jones [SCOTUSblog backgrounder] that the government's attachment of a global positioning system (GPS) [JURIST news archive] device to a vehicle, and its use of that device to monitor the vehicle's movements, constitutes a search under the Fourth Amendment [text]. The federal government sought Supreme Court review after the US Court of Appeals for the District of Columbia Circuit ruled [JURIST reports] in 2010 that prolonged use of GPS to monitor suspects' vehicles violates the Fourth Amendment protection against unreasonable searches and seizures. Affirming the decision below, Justice Antonin Scalia delivered the opinion of the court, which was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Sonia Sotomayor:
It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a "search" within the meaning of the Fourth Amendment when it was adopted.
Sotomayor also filed a concurring opinion. Justice Samuel Alito filed a concurring opinion, joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan. Alito "would analyze the question presented in this case by asking whether respondent's reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove."

The court heard arguments [JURIST report] in the case in November. 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. JURIST Guest Columnist Jim Harper [professional profile], Director of Information Policy Studies at the Cato Institute, argued in a piece for JURIST that the Supreme Court should use US v. Jones as an opportunity to reaffirm Fourth Amendment protections against unreasonable search and seizure, particularly in light of technological advances.




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ICC confirms charges against 4 suspects for Kenya post-election violence
Sarah Posner on January 23, 2012 9:42 AM ET

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[JURIST] The International Criminal Court (ICC) [official website] on Monday confirmed charges [press release] against four of the six suspects allegedly involved in the violence following the December 2007 Kenyan elections [JURIST news archive]. Two potential presidential candidates are among the four poised to stand trial [AP report] before the ICC. Deputy Prime Minister and Finance Minister Uhuru Kenyatta and former Education Minister William Ruto [decisions, PDF], who both plan to run for president next year, were among the four suspects charged. The ICC reached this decision after collectively and individually analyzing the evidence presented. More than 1,000 people were killed during the post-election violence in Kenya. The ICC stated:
With respect to the crimes charged and based on the evidence placed before it, the Chamber found that the Prosecutor has established substantial grounds to believe that the crimes against humanity of murder, deportation or forcible transfer and persecution were committed. These crimes resulted in the death of hundreds, and the displacement of thousands of civilians from Turbo town, the greater Eldoret area, Kapsabet town and Nandi Hills.
The ICC hopes that this decision brings peace to the people of Kenya.

In October, defense counsel for three Kenyan leaders charged in the ICC with inciting violence [JURIST report] after the December 2007 Kenyan elections argued that prosecutors had not fully investigated evidence that they planned to present at trial. In June, Kenyan Attorney General Amos Wako appealed [JURIST report] the refusal by the ICC to transfer the cases to Kenyan jurisdiction. In response, the ICC called for a hearing "to properly assess the desirability and feasibility of conducting the confirmation of charges hearings in the Republic of Kenya." In March, The ICC issued summons [JURIST report] for six Kenyans suspected of inciting the 2007-2008 post-election violence.




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HRW releases 2012 world report
Julia Zebley on January 22, 2012 12:34 PM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] released [press release] its annual World Report [materials] on Sunday, leading with a criticism of Western governments' support of Middle Eastern regimes that stifle and suppress protests. The comprehensive report catalogs all of the world's major human rights violations and gives HRW's outlook on trends and remedies to ongoing situations. Focusing on the reverberations of recent uprisings in the Middle East, HRW recommended that democratic governments reject autocracies:
Western policy towards Arab countries traditionally has been one of containment, backing an array of Arab autocrats to guarantee "stability" in the region even as democracy spread in other parts of the world. Human Rights Watch said the reasons so many democratic governments make an "Arab exception" include fear of political Islam and terrorism, the need to keep oil supplies flowing, and a longstanding policy of reliance on autocracies to maintain Arab Israeli peace and to help stifle migration to Europe.
HRW also cited the Middle Eastern revolutions and protests as inspiration for citizens in other oppressed nations, including China, Zimbabwe, North Korea, Ethiopia, Vietnam and Uzbekistan [JURIST news archives]. However, HRW strongly criticized the continued lack of international action on Yemen, Bahrain and Syria [JURIST news archives], and pleaded with Western nations to "clearly sid[e] with democratic reformers even at the expense of abandoning autocratic friends. There is no excuse for any government to tolerate Assad's lethal repression, to close its eyes to Bahrain's systematic crackdown, or to exempt other monarchs from pressure to reform."

Although much of the report focused on last year's Middle Eastern uprisings, there were several other criticisms leveled at various nations. HRW reprimanded the US, the UK [HRW reports] and other Western nations for disavowing torture programs while castigating Middle Eastern nations for similar actions. In addition to criticizing the US illegal detention programs, the report also pointed to extreme prisoner rights abuses and a high level of incarceration of illegal immigrants and racial minorities. European nations were reprimanded for a number of human rights abuses, including France [HRW report] expelling Roma immigrants [JURIST comment], Hungary's controversial media law [JURIST report] and Italy's rejection of Tunisian refugees [JURIST report]. Belarus [HRW report] was highlighted for its many human rights violations [JURIST news archive], including voter fraud, taking of political prisoners, stifling of the Internet and dissent and its continued use of the death penalty. The report praised Bosnia and Herzegovina, Croatia and Serbia [HRW reports] for holding war criminals accountable by supporting the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website], especially in the arrest of Ratko Mladic [JURIST news archive]. Uzbekistan and Russia [HRW reports] received the sharpest rebukes for European human rights violations, with HRW especially noting that Prime Minister Vladimir Putin's future run for president in Russia is "a foregone conclusion, and cast[s] a shadow over the prospect of much-needed political reform." HRW also commented that the trial of Yulia Tymoshenko [JURIST news archive] has shaken the faith in the judiciary of Ukraine, while in Turkey [HRW reports] the biggest issue was their negligence in addressing the needs of the Kurdish people.

Africa's human rights record continues to disturb HRW, with much of the focus on the Ivory Coast [HRW report] and its violent presidential election [JURIST news archive] last year that resulted in the death of approximately 3,000 people. The report praised the nation for attempting to return to the rule of law by holding legislative elections in December and allowing International Criminal Court intervention [JURIST report]. The Democratic Republic of the Congo (DRC) [HRW report] received criticism for continued violence, especially in the wake of a recent presidential election [JURIST report], but was commended for its attempts to prosecute perpetrators of rape as a military tactic, although HRW would like to see more progress in apprehending the actors in a mass rape of 387 DRC citizens [JURIST report]. HRW had high praise for Kenya [HRW report] and their continuous reforms since violence in the nation several years ago. Rwanda [HRW report] was also praised for reforms, although the report noted that the freedom of expression is "severely restricted" in the nation, and that the legacy of the International Criminal Tribunal for Rwanda (ICTR) [official website] is mixed, "with a number of positive achievements—including the swift work of the courts, the extensive participation of the local population, and the revelation of information about events during 1994—alongside violations of the right to a fair trial, intimidation of witnesses, corruption of judges and other parties, and political interference." Somalia [HRW report] and its civil war was surveyed, with HRW noting the nation's continued widespread abuse of children [JURIST report], including the use of child soldiers. Uganda [HRW report] was condemned for an unstable judiciary, a lack of free speech rights and violence against LGBT citizens [JURIST reports].

South America and Mexico's human rights violations continue to be largely in the realms of free speech and judicial and martial independence from corruption. Argentina [HRW report], although praised for successful prosecutions of war criminals [JURIST report], was chided for poor prison conditions and limitations on women's reproductive rights. The report decried rampant violence [JURIST report] in Colombia [HRW report], while also criticizing the US government's attempts at aid as being largely unchecked: "Thirty percent of US military aid is subject to human rights conditions, which the US Department of State has not enforced. In September 2011 the State Department certified that Colombia was meeting human rights conditions." The report also questioned the effectiveness of a recent trade agreement [JURIST report] between the US and Colombia. Cuba [HRW report], which the report declared "the only country in Latin America that represses virtually all forms of political dissent," was chastised for its record of arbitrary arrests, detentions and taking of political prisoners, including US citizen Alan Gross [JURIST report]. The report noted that Haiti [HRW report], still reeling from its 2010 earthquake, not only has to restore the country's basic infrastructure and health needs, but also continues a lamentable human rights record, and expressed concern that the nation's judiciary could not handle the prosecution of Jean-Claude Duvalier [JURIST report]. Venezuela [HRW report] and President Hugo Chavez [BBC profile] were criticized for a "political takeover" of the nation's Supreme Court, which recently ruled that an opposition candidate was ineligible to run for president [JURIST report]. Finally, Mexico and its security forces [JURIST report] reactions to increasing homicides concerned HRW.

Finally, many Asian countries reportedly continue to struggle with basic rights of political expression. The report doled out strong criticism for Afghanistan [HRW report] and its continued support of war lords as well as "flawed parliamentary elections." HRW commanded Bangladesh [HRW report] to end its policies of torture and extrajudicial killings and called into question the competency of recent war crimes trials [JURIST reports]. The report chastised Prime Minister Hun Sen [BBC profile] of Cambodia [HRW report] for undermining the nation's Khmer Rouge trials [JURIST report]. China and North Korea [HRW report] were named as especially egregious violators of human rights, especially freedom of speech, but reporting in the private nations remains difficult. India and the Philippines [HRW reports], often seen as relatively stable democracies, were criticized for corruption and deficits in the rule of law, as well as troubling records on women's rights. HRW labeled Pakistan [HRW report] as having a "disastrous year," rife with civil discontent, military and guerrilla attacks on citizens and persecution of religious minorities. Sri Lanka [HRW report] continues to rebound from a civil war, although HRW is concerned that the government's investigations of war crimes [JURIST report] has not been credible enough. Finally, Vietnam [HRW report] and its continued suppression of bloggers, rights activists [JURIST reports] and journalists was denounced, and HRW attributed the recent obstruction of media to "Vietnamese government concerns that pro-democracy ... movement might reach Asia."




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Former Guatemala dictator to give testimony in genocide trial
Matthew Pomy on January 22, 2012 12:21 PM ET

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[JURIST] Former Guatemalan dictator Efrain Rios Montt will be made to testify at his genocide trial, according to a statement by judicial officials on Saturday. Rios Montt was in control of Guatemala from 1982 to 1983 as a result of a coup and is being charged with crimes against humanity and genocide during his rule. He was protected from prosecution until this month because he was serving in congress. Rios Montt said he would cooperate with the court [EFE report, in Spanish]. The case involves at least 1,771 deaths and 1,400 human rights violations during the 36-year Guatemalan Civil War [GlobalSecurity backgrounder] with much of the violations occurring during Rios Montt's rule.

The Guatemalan civil war resulted in more than 200,000 deaths, mostly among Guatemala's large indigenous Mayan population. According to a UN report [text, in Spanish] released in 1999, the military was responsible for 95 percent of those deaths. In response to these violations, the Guatemalan government founded the National Compensation Program (PNR) in 2003 to deal with claims by civilians affected by the civil war. The PNR, after setting up its administrative structure, has begun to use its $40 million budget to work through a backlog of more than 98,000 civilian complaints. Four former soldiers and two former police officers [JURIST reports] have already been convicted in relation to these crime. Spain attempted to extradite Rios Montt [JURIST report] in 2008, but failed due to a lack of jurisdiction.




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Yemen parliament grants immunity to outgoing president Saleh
Matthew Pomy on January 22, 2012 10:16 AM ET

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[JURIST] The Yemeni parliament on Saturday approved a bill [press release, in Arabic] granting immunity to President Ali Abdullah Saleh [official website, in Arabic; JURIST news archive] in exchange for him stepping down. In the same bill, parliament recommended current Vice President Abd-Rabbu Mansour Hadi become the new president. The bill would protect Saleh against prosecution for politically motivated acts but not terrorism. It also gives partial protection to all of his aides. While this bill seeks to create unity in the government, according to a statement by the head of the House of Representatives to parliament during the session, it has sparked new protests [Reuters report].

UN High Commissioner for Human Rights Navi Pillay [official profile] has spoken out against granting immunity [JURIST report] because of concerns that it might be too broad. In April, Saleh agreed to step down [JURIST report] in exchange for immunity. The UN is investigating human rights violations [JURIST report] in Yemen in relation to its handling of pro-democracy protests. Saleh and his party, the General People's Congress (GPC), had caused the political tensions that led to the protests through their attempts to remove presidential term limits [JURIST report] and expand their political power.




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UN concerned over Cambodia blocking international judge from genocide tribunal
Michael Haggerson on January 21, 2012 2:47 PM ET

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[JURIST] The UN expressed concern [press release] on Friday over Cambodia's decision to not appoint the reserve judge to the Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website; JURIST news archive] over "ethical concerns." The UN stated that the ethical concerns were unfounded. The previous judge, Judge Siegfried Blunk, resigned [JURIST report] in October over statements made by the Cambodian foreign minister allegedly attempting to interfere with the tribunal's proceedings. ECCC judges, including Blunk, have been criticized for allegedly failing to conduct impartial investigations. Cambodia has argued that the trial of former Khmer Rouge leaders is a Cambodian issue and should not be a matter of international concern. The refusal to permit the reserve judge to take the vacant position on the tribunal has blocked two pending cases [AFP report].

In October, defense lawyers for accused Khmer Rouge leader Nuon Chea filed a lawsuit [JURIST report] against Cambodian 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 his 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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Mali becomes first African state to enforce ICC sentences
Michael Haggerson on January 21, 2012 2:01 PM ET

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[JURIST] Mali signed an agreement [press release] Friday with the International Criminal Court (ICC) [official website] to become the first African country to agree to enforce the ICC's sentences of imprisonment. Article 103 of the Rome Statute [text], which governs the ICC, states that "[a] sentence of imprisonment shall be served in a State designated by the Court from a list of States which have indicated to the Court their willingness to accept sentenced persons." Mali joins Finland, Belgium, Denmark, the UK and Austria as countries which have agreed to detain individuals convicted by the ICC. Finland, Belgium and Denmark were the most recent countries to agree to take convicts [JURIST report].

The ICC has been heavily involved in prosecuting crimes against humanity in Africa. In December the ICC urged international cooperation [JURIST report] in executing arrest warrants for suspects accused in the Darfur conflict [ICC materials]. Sudanese President Omar al-Bashir [ICC materials; JURIST news archive] is currently at-large and faces seven counts of war crimes and crimes against humanity as well as three charges of genocide [JURIST reports]. Also in December, former Ivory Coast president Laurent Gbagbo [BBC profile] was brought into custody and appeared before the ICC [JURIST report] to face charges of murder, persecution, inhumane acts, and rape and other forms of sexual violence allegedly committed during 2010's post-election violence [JURIST news archive] in the Ivory Coast. In November the ICC indicated that it would allow Libya to conduct the trial of Saif al-Islam Gaddafi [JURIST report], son of former Libyan leader Muammar Gaddafi [BBC profile], despite concerns over whether he could possibly receive a fair trial. In August the ICC concluded its first war crimes trial [JURIST report], the trial of Democratic Republic of Congo militia leader Thomas Lubanga [ICC materials; BBC profile] for enlisting child soldiers and committing large-scale human rights abuses in Congo's violent Ituri district. In June Kenya appealed [JURIST report] the ICC's refusal to transfer two cases against high-ranking Kenyan officials for their alleged involvement in the violence after the 2007 Kenyan elections [JURIST news archive]. The Kenyan men facing charges in the ICC, the "Ocampo Six," are accused of inciting violence after the 2007 Kenyan elections which resulted in more than 1,100 deaths, 3,500 injuries, hundreds of rapes and up to 600,000 individuals being forcibly displaced.




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Chevron appeals Ecuador court's $18 billion fine
Jamie Davis on January 21, 2012 11:02 AM ET

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[JURIST] US oil company Chevron Corp [official website] announced Friday that it has filed an appeal [text, PDF, in Spanish] with the National Court of Justice in Ecuador asking it to reconsider the decision rendered by an Ecuadorian judge [press release] that would require Chevron to pay $18 billion in damages from the pollution it has caused to the Amazon jungle. Chevron appealed on grounds that the lower court's decision violated Ecuador's constitution because the court failed to correct or punish [Reuters report] the "extensive fraud and corruption" that was being committed by the lawyers representing the plaintiffs. Chevron, which inherited the case after taking over Texaco, argued that the application of law was also incorrect because Ecuador released Texaco from liability during the 1990s. Chevron has also attempted to find other ways to overturn the judgment by instituting arbitration proceedings in The Hague under the US-Ecuador Bilateral Investment Treaty (BIT) [text, PDF]. In February 2011, the tribunal conducting the arbitration proceedings ordered Ecuador to suspend enforcement of the lower court's judgment against Chevron until further notice. Chevron has also instituted a suit in the US District Court for the Southern District of New York against the plaintiff's representatives for violating federal statutes, including racketeering.

The judgment against Chevron was upheld in January by a three-judge panel of the Provincial Court of Justice of Sucumbios in Lago Agrio, Ecuador. The $18 billion fine, one of the largest in the history of environmental contamination suits, was originally set at $8.6 billion [JURIST report] but was more than doubled for Chevron's refusal to pay "moral reparations" to the Ecuadorian government, as required by the original ruling. The Amazon Defense Coalition [advocacy website], plaintiffs in the suit, have responded that the first judgment was a reaffirmation of how Chevron's greed and criminal misconduct in dumping billions of gallons of toxic waste into the river has led to death and disease. Damages were initially awarded in February by the Provincial Court of Justice of Sucumbios which found that Texaco, which was acquired by Chevron in 2001, polluted large areas of the country's rain forest.




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Federal appeals court strikes New Mexico sex offender library ban
Jamie Davis on January 21, 2012 10:10 AM ET

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[JURIST] The US Court of Appeals for the Tenth Circuit [official website] ruled [opinion, PDF] Friday that a policy in the city of Albuquerque, New Mexico, that bans registered sex offenders from entering the city's public libraries is unconstitutional. The court reasoned that the policy violated the fundamental right to receive information under the First Amendment [text] of the Constitution and that denying access to public libraries to some is an infringement on this right. While the court held that the current policy is in violation of the Constitution, it noted that a less strict policy may be an option for the city, stating:
We note that our decision does not signal the death knell of the City's efforts, if it wishes to pursue them, to restrict access of registered sex offenders to the City's public libraries. ... Like the Supreme Court, we "generally will not strike down a governmental action" for failure to leave open adequate alternative channels of communication "unless the government enactment will foreclose an entire medium of public expression across the landscape of a particular community or setting.
The appeals court affirmed the 2009 ruling of a US District Court judge in New Mexico who held that the city's ban was too restrictive. The policy banning sex offenders from Albuquerque public libraries began in 2008 when the former mayor of the city ordered the city libraries [Reuters report] to inform registered sex offenders by letter that they were no longer allowed to use the facilities.

US courts have seen numerous constitutional challenges to laws placing restrictions on sex offenders. In August, the American Civil Liberties filed a complaint in federal court seeking to block a Louisiana law that limits Internet use for registered sex offenders [JURIST report]. In May 2010, the US Supreme Court ruled that mentally ill sex offenders may be civilly committed [JURIST report] beyond their prison sentences. The New Jersey Supreme Court ruled [JURIST report] in May 2009 that local ordinances prohibiting convicted sex offenders from living near schools, playgrounds, and other public areas were preempted by the state's Megan's Law and, therefore, invalid. In March 2009, the US Court of Appeals for the Fourth Circuit ruled that a South Carolina law requiring convicted first degree sex offenders to submit to a DNA test and pay $250 in processing fees prior to their release does not violate the ex post facto clause of the Constitution [JURIST report]. A judge in the US District Court for the Eastern District of California ruled in February 2009 that the Sex Offender Registration and Notification Act of 2006 (SORNA), which makes it a federal crime for a sex offender to attempt to move to another state [JURIST report] while failing to register in a nationwide database, is unconstitutional.




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UN rights expert calls on new North Korea leaders to address human rights concerns
Jerry Votava on January 21, 2012 8:34 AM ET

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[JURIST] The UN Special Rapporteur on North Korean Human Rights Marzuki Darusman called [statement; press release] Friday on the new leadership of North Korea (DPRK) [JURIST news archive] to improve human rights concerns in their country. The statement comes as North Korea begins a new era of leadership under Kim Jong-un [BBC profile], the son of and successor to the recently deceased leader Kim Jong-il [BBC obituary]. Darusman gave the statement at the end of an official visit to Japan where he met with North Korean defectors and Japanese officials engaged with North Korea. He said that he had gathered information including "numerous reports of a dire humanitarian situation, in particular the serious shortage of food, and the critical human rights situation" in North Korea. Darusman noted the potential for improved human rights with the new leadership:
The ramifications of this change on the people of DPRK, and on neighboring countries will only unfold in the comings days and months. However, I am hoping that the new leadership in DPRK will use the change in leadership as an opportunity to engage with the international community and secure global confidence. The world is eagerly looking at DPRK to see what lies ahead, and hoping that the authorities will take measures to improve the human rights situation of the people of DPRK.
Darusman also discussed the alleged abduction of Japanese and other foreign nationals by North Korea, and advocated for their return.

Darusman criticized North Korea's human rights record in November, focusing on the treatment of prisoners and echoing a UN General Assembly [official website] resolution [text] concerning the country's human rights conditions. 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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Yemen amends immunity law for Saleh's associates
Jaimie Cremeans on January 20, 2012 2:26 PM ET

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[JURIST] Yemeni officials on Thursday amended a law that would have given complete immunity to President Ali Abdullah Saleh [official website, in Arabic; JURIST news archive] and all of his associates, limiting it to politically motivated crimes for Saleh's aides. The original draft [text, in Arabic] of the law, which gave full immunity to Saleh and all civil, military and security agents who worked under him, was passed by the Council of Ministers [JURIST report] almost two weeks ago. Under the amended law, Saleh would maintain complete immunity for crimes committed during his regime, but his associates would only have limited immunity. Discussion of the amended law in Yemen's parliament is scheduled for Saturday.

Voting on the original bill was postponed for the third time [Yemen Times report] Wednesday. One of the reasons for the delays was opposition to the clause granting blanket immunity for government officials who worked under Saleh. UN High Commissioner for Human Rights Navi Pillay opposes immunity [JURIST report] for Saleh and his officials, saying the victims deserve justice and will not get it if the law is passed. Pillay advocated for an investigation [JURIST report] of Saleh and his administration in early December for alleged human rights violations. Saleh agreed to step down [JURIST report from his office in April amidst pressure from protesters, and the immunity law was a condition of his promise.




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Haiti judge convicts 8 police officers for post-earthquake prison shooting
Sung Un Kim on January 20, 2012 11:24 AM ET

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[JURIST] Haitian Judge Ezekiel Vaval convicted eight police officers on Thursday for their participation in the shooting and killing of at least 10 prisoners after the January 2010 earthquake [JURIST news archive]. The judge also found that six other police officers were innocent. One of the convicted officers fled the country before the trial and was convicted in absentia. The officers were accused of murder, attempted murder and other crimes during a prison riot in Les Cayes. The decision was based on numerous witness testimonials. The sentences range from two to 13 years of hard labor. Twenty-one other officials fled before the trial, and the court plans to try those officials in absentia in the near future. Haiti has been criticized [text] in the past for its failure to investigate and convict officials for human rights violations.

The trial was initiated after a spokesperson for the UN peacekeeping mission in Haiti [official website] announced [JURIST report] in 2010 that it launched an investigation into the shootings. Haiti faced difficulty in maintaining [JURIST report] law and order during the aftermath of the 2010 earthquake. Numerous prison inmates of the main prison in the capital Port-au-Prince escaped [JURIST report] when it collapsed during the earthquake.




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Supreme Court rejects interim Texas redistricting maps
Jaclyn Belczyk on January 20, 2012 11:22 AM ET

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[JURIST] The US Supreme Court [official website] ruled Friday rejected [opinion, PDF] Texas's interim redistricting maps. The emergency appeal [JURIST report] challenged an interim map drawn up by the US District Court for the Western District of Texas while a separate map drawn up by the state legislature is currently being challenged in the US District Court for the District of Columbia [official websites] for compliance with the Voting Rights Act (VRA) [Cornell LII backgrounder]. In a per curiam opinion, the court rejected the interim maps, finding that, "it is unclear whether the District Court for the Western District of Texas followed the appropriate standards." Justice Clarence Thomas wrote a separate concurrence in which he argued that Section 5 of the VRA, which requires preclearance of the redistricting plan, is unconstitutional. Also Friday, the court set aside [order, PDF] a lower court ruling [JURIST report] that declared West Virginia's redistricting plan unconstitutional until the court can rule on the matter.

According to the 2010 census, Texas' population grew by 4.3 million, which gave it four more seats in the US House of Representatives. The Republican-controlled state legislature redrew the congressional districts in a way that challengers claim would make it more likely for Republicans to win those new seats. The plan must be approved by either the Justice Department or a federal court under Section 5 of the VRA, and the Obama administration has objected to the plan. In the meantime, the federal court in Texas drew an "interim map" for use in the 2012 election. That is the map that is currently being challenged before the Supreme Court. The Obama administration urged the Supreme Court to reject the interim maps, and the court heard arguments [JURIST reports] in the case last week.




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Germany prosecutors: convicted Nazi criminal should serve life sentence
Sung Un Kim on January 20, 2012 10:49 AM ET

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[JURIST] The Ingolstadt Prosecutor's Office [official website, in German] filed a motion on Thursday to jail Klaas Faber, a Dutch native who fled to Germany after being convicted in the Netherlands in 1947 of Nazi war crimes. He is one of the last on the Simon Wiesenthal Center [advocacy website] Most Wanted list [BBC backgrounder] of surviving Nazi suspects who escaped punishment. Faber, 90, was accused of having participated in 22 murders and aiding the Nazis during their occupation of the Netherlands. Faber and his brother, Piet, were sentenced to death by a Dutch court, and Piet was executed while Klaas' sentence was reduced to life imprisonment. In 1952, he escaped the Netherlands and fled to Germany. Since then, the Netherlands has sought his extradition without success. It is unclear when the Ingolstadt district court will rule on the matter.

Germany reopened investigations into former Nazi death camp guards in October, which stemmed from the conviction of John Demjanjuk [JURIST reports], a former guard at a camp in Poland who was deported to Germany to stand trial for his alleged Nazi crimes. Nazi prosecution is still ongoing, despite the ages of the accused. Alleged Nazi Sandor Kepiro died while he awaited an appeal [JURIST report] on his acquittal on war crimes charges. Another convicted Nazi commander, Josef Scheungraber, is likely not able to serve [JURIST report] his life sentence due to his mental health issues.




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US prosecutors charge 7 in $62 million insider trading scheme
Maureen Cosgrove on January 20, 2012 10:46 AM ET

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[JURIST] US officials on Wednesday announced charges [text] against seven individuals purportedly involved in a $62 million insider trading scheme. The individuals, who worked for five different investment institutions, are accused of earning illegal profits on the basis of insider information regarding publicly traded companies, including Dell Inc. and NVIDIA. US Attorney for the Southern District of New York Preet Bharara [official profile] described the nature of the illegal conduct and expressed his intent to curb insider trading [press release, PDF]:
The charges unsealed today allege a corrupt circle of friends who formed a criminal club whose purpose was profit and whose members regularly bartered lucrative inside information so their respective funds could illegally profit. And profit they allegedly did—to the tune of more than $61 million on illegal trades of a single stock—much of it coming in a $53 million short trade. Here, The Big Short was The Big Illegal Short. We have demonstrated through our prosecutions that insider trading is rampant and has its own social network, a network we intend to dismantle. We will be unrelenting in our pursuit of those who think they are above the law.
Janice Fedarcyk [official profile], Assistant Director-in-Charge of the New York Office of the FBI [official website] also condemned the alleged insider trading conspiracy [press release]. Three of the seven have already pleaded guilty to counts of securities fraud and conspiracy to commit securities fraud and are cooperating with the government. The men face potential penalties of five to 25 in prison and fines of $250,000 to $5 million.

US prosecutors and the FBI have targeted insider trading in the investment industry in recent years. Raj Rajaratnam, co-founder of the Galleon Group, was convicted of 14 counts of insider trading [JURIST report] in May and sentenced to 11 years in federal prison [JURIST report] in one of the largest hedge fund insider trading cases in US history. Several other defendants have pleaded guilty in connection with the case. Former hedge fund consultant Danielle Chiesi pleaded guilty [JURIST report] in January. Former IBM senior vice president Robert Moffat was sentenced to six months in prison in September 2010 and ordered him to pay a $50,000 fine for his role in the scheme after pleading guilty [JURIST reports] in March 2010. Former Intel Capital executive Rajiv Goel pleaded guilty [JURIST report] to insider trading charges in February 2010. Rajaratnam, Chiesi, Goel and Moffat were arrested in October 2009 and charged [complaint, PDF] along with two other individuals and two business entities with insider trading. The complaint alleged that the individuals provided Galleon Group and another hedge fund with material nonpublic information about several corporations upon which the funds traded, generating $25 million in illicit gain. Rajaratnam and Chiesi originally pleaded not guilty [JURIST report] in December 2009 after being indicted for insider trading.




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Ethiopia court convicts three journalists, two others under controversial anti-terrorism law
Brandon Gatto on January 19, 2012 1:53 PM ET

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[JURIST] The Ethiopian Federal High Court [official website, in Amharic] on Thursday convicted three Ethiopian journalists, a political opposition leader and a politician's assistant for conspiring to commit acts of terrorism in violation of the country's Anti-Terrorism Proclamation of 2009 [text]. Human Rights Watch (HRW) [advocacy website] and other advocacy groups have criticized the law as a violation of free expression and due process rights. HRW reported [press release] Thursday that the defendants had no access to legal counsel during their three months in pretrial detention and that the court did not investigate allegations of torture and mistreatment while in detention. Although two of the convicted journalists argued that they had been beaten and tortured in prison, the court chose not to investigate the matter furthe . Said Lesli Lefkow [HRW profile], senior Africa researcher at HRW:
The verdict against these five people confirms that Ethiopia's anti-terrorism law is being used to crush independent reporting and peaceful political dissent. The Ethiopian courts are complicit in this political witch-hunt. Getting a fair trial in a political case in Ethiopia today may be impossible. The prosecution should drop the charges against these defendants and instead investigate their allegations of torture.
Claire Beston, the Ethiopia researcher at Amnesty International (AI) [advocacy website], echoed Lefkow's statement when she asserted [press release] that much of the evidence against the defendants was merely journalistic reports and calls for peaceful protests against the government. Under the anti-terrorism law, conspiracy to commit terrorist acts carries a sentence of 15 years to life imprisonment or death. Sentencing is expected to occur on January 26.

Ethiopia's anti-terrorism law has faced consistent criticism since being passed [JURIST report] in 2009. Most recently, in December, two Swedish journalists were convicted and sentenced to 11 years in prison for supporting terrorism and entering Ethiopia illegally. There, the court did not find credible the journalists' argument that they entered into the country with a terrorist group in order to gain access to an area restricted to journalists. In response, HRW argued that the law is being used to suppress journalists [JURIST report], that the trial was unfair and that the Swedes should be released immediately [press release]. Similarly, in August, JURIST guest columnist and former executive director Abigail Salisbury argued that the Ethiopian government is using the law to suppress journalists and opposition groups in order to maintain its hold on power [JURIST op-ed]. In July, HRW called on the government to stop using the law to repress free speech [JURIST report].




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Pakistan PM appears in court on contempt charges
Jamie Reese on January 19, 2012 12:36 PM ET

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[JURIST] Pakistani Prime Minister Yousuf Raza Gilani [BBC profile; JURIST news archive] honored a summons issued by the Supreme Court of Pakistan [official website] by appearing Thursday to answer contempt charges brought by the court earlier this week [JURIST report]. Gilani was ordered to appear to explain why he did not comply with court's order to reopen a corruption case against President Asif Ali Zardari [official website]. Gilani maintained that Zardari is immune from prosecution [AP report]. The conflict between the prime minister and the court stems from an order which struck down [JURIST report] the National Reconciliation Ordinance (NRO) [text] in 2009, which granted immunity to Zardari and 8,000 other government officials from charges of corruption, embezzlement, money laundering, murder and terrorism between January 1986 and October 1999. The court wants the government to ask Swiss authorities to reopen their case against Zardari, who was found guilty in absentia in Swiss court in 2003, but the case was subsequently dropped at the request of the Pakistani government. The court adjourned the matter for two weeks, scheduling a hearing on February 1 to hear more arguments on the case, including the issue of the president's immunity.

These proceedings reflect an ongoing struggle between the government and the courts in Pakistan. Last month, the Supreme Court formed a judicial committee to investigate a secret memo [JURIST report] sent from an unknown Pakistani source to US Admiral Mike Mullen in May asking for help in preventing a suspected army coup. Zardari and former Pakistan ambassador to the US Husain Haqqani have been accused of writing or having knowledge of the memo, and both have denied these allegations. In October 2011, the Supreme Court issued a judgment urging political parties to stop financing criminal groups [JURIST report] responsible for increased violence in the city of Karachi. The decision stated that militant groups have gained strength because of support from local political groups and order the Pakistani government to help address the corruption. The Court struck down the NRO in 2009, which was signed [JURIST report] by former Pakistani president Pervez Musharraf [BBC profile; JURIST news archive] in 2007.




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China court sentences rights activist to prison for subversion
Katherine Getty on January 19, 2012 12:21 PM ET

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[JURIST] Chinese authorities on Wednesday sentenced a prominent rights activist to 10 years in prison, marking the third such sentence in a month. Dissident Li Tie was sentenced for subversion [BBC report]. The charges were brought in response to pro-democracy articles Li wrote in 2010. Li professed his innocence saying that his articles accorded with the Constitution. Li was detained in September 2010, but his trial did not take place until April 2011. During the trial Li's family attempted to hire a lawyer, but the government removed him from the case and appointed a government lawyer. His family has vowed to appeal the conviction. Chinese Human Rights Defenders [advocacy website] rejected the decision and said that such harsh sentences would do nothing to prevent [news release] or curb the social unrest.

This is the third time in a month that a dissident has been sentenced for subversion. Chen Xi was sentenced to 10 years [JURIST report] in late December for publishing political essays online. In that same month a court sentenced Chen Wei to nine years in prison [JURIST report]. The sentence came as a response to charges that stemmed from written essays critical of the Communist Party, which Chen published on overseas Chinese websites, avoiding the national Internet censorship firewalls. Earlier this week dissident Zhu Yufu was charged with subversion for writing and publishing a poem on the internet that urged people to act in support of freedom [BBC report]. Two longer sentences for subversion convictions belong to Nobel Laureate Liu Xiaobo [BBC profile; JURIST news archive], who has been serving an 11-year sentence [JURIST report] since 2009, and Liu Xianbin, who was jailed for 10 years in March 2011.




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Australia panel calls for recognition of indigenous population in constitution
Maureen Cosgrove on January 19, 2012 10:44 AM ET

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[JURIST] A panel of Australian citizens on Thursday proposed that the country's Constitution [materials] recognize the Australian indigenous population [report materials], including Aboriginal and Torres Strait Islander people. Currently, although Aborigines make up almost three percent of the Australian population, they are not mentioned in the constitution. The panel, consisting of Australian business executives, political leaders, Aboriginal leaders and legal scholars, produced the report recommending that the Australian government make changes [CNN report] to the constitution in an effort to decrease racial discrimination and foster "a sense of national unity." The panel suggested that recognizing the indigenous population in the constitution conforms with the nation's evolution:
The consultations the Panel undertook were a reminder of how far Australia has come since the nation's legal and political foundations were laid down in the late nineteenth century. Then, in line with the values of the times, Aboriginal and Torres Strait Islander peoples were excluded from the deliberations that led to the adoption of the Constitution. The text of the Constitution excluded them. It was not until two-thirds of the way through the nation's first century that the exclusion was removed and the Constitution shifted closer to a position of neutrality. The logical next step is to achieve full inclusion of Aboriginal and Torres Strait Islander peoples in the Constitution by recognising their continuing cultures, languages and heritage as an important part of our nation and by removing the outdated notion of race.
The Australian government expressed its appreciation for the panel's work and said it would carefully review the recommendations [press release].

In recent years, the Australian government has recognized the long history of discrimination and disadvantage among its native citizens, although its efforts have not always resulted in better conditions. Australian Prime Minister Julia Gillard [official website] announced a national referendum [JURIST report] that sought to include Aboriginal and Torres Strait Islanders in the Australian Constitution in November 2010. In August 2010, Amnesty International Australia (AIA) criticized the racial discrimination [JURIST report] that exists in Australia, which, according to AIA, violates the International Convention on the Elimination of All Forms of Racial Discrimination and the UN Declaration on the Rights of Indigenous Peoples [texts]. In June 2010, the Australian government reinstated its previously suspended Racial Discrimination Act [JURIST report] in the Northern Territory, which allows governmental authorities to regulate how welfare money is spent by the indigenous people of the country. In March 2010, UN special rapporteur James Anaya condemned the law [press release], calling it problematic from a human rights point of view. Australia endorsed [JURIST report] the aforementioned Declaration on the Rights of Indigenous People, which reversed the position held by previous Australian governments. Former prime minister Kevin Rudd championed the cause of improved living conditions for and relations with Australia's indigenous population during his term in office, and offered and official apology on behalf of the federal government in February 2008 for past mistreatment to the nation's indigenous population.




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Middle East rights groups allege human rights violations in Libya
Jennie Ryan on January 19, 2012 10:28 AM ET

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[JURIST] A coalition of Middle Eastern human rights organizations on Thursday accused all parties involved in the Libya conflict [JURIST backgrounder] of human rights violations [report, PDF] and crimes against humanity. Three organizations were involved in the fact-finding mission [press release] which resulted in the report: the Arab Organisation for Human Rights [advocacy website, in Arabic], the Palestinian Centre for Human Rights and the International Legal Assistance Consortium [advocacy websites]. The report alleges that all parties involved, including the North Atlantic Treaty Organization (NATO) [official website], committed acts ranging from use of excessive force against protesters to cruel and inhuman treatment of prisoners during detention. The rights groups recommend that Libyan authorities launch investigations into the conduct of all parties involved in the conflict. They also urged the UN and the international community as a whole to "provide training, support and other assistance to Libyan authorities and civil society to implement the goals" of section 12 of the UN Security Council Resolution 2009 [text in PDF]. Section 12 mandates the establishment of the UN Support Mission in Libya (UNSMIL) dedicated to the "promotion of the rule of law; promotion and protection of human rights, particularly for those belonging to vulnerable groups; and support for transitional justice."

Allegations of war crimes and human rights violations have been widespread during the conflict in Libya. In September the Libyan National Transitional Council (NTC) [official website] vowed to investigate allegations of human rights after Amnesty International (AI) [advocacy website] published a report [JURIST report] alleging that both sides of the Libya conflict are responsible for human rights abuses and warning the NTC to act quickly to investigate these allegations. In August, Physicians for Human Rights (PHR) [advocacy website] reported [text, PDF] Libyan troops used children as human shields [JURIST report] to deter attacks by NATO. Also in August, Libyan Prime Minister Al Baghdad Ali Al-Mahmoudi requested that the UN create a "high-level commission" to investigate alleged human rights abuses [JURIST report] by NATO.




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France senate panel rejects genocide denial ban
Rebecca DiLeonardo on January 19, 2012 9:42 AM ET

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[JURIST] A committee of the French Senate [official website, in French] voted on Wednesday to oppose a law that would outlaw genocide denial [press release], including the World War I-era killings of more than one million Armenians by Turkish soldiers. The proposed law [materials], which was approved by the French National Assembly [JURIST report] in December, sparked animosity in Turkey, which does not consider the 1915 killings genocide. If passed, the law would impose criminal penalties on those who are deemed to be "condoning, denying or grossly trivializing crimes of genocide." In a press release, the committee expressed concern about the constitutionality of the law:
[This committee] has long questioned the legitimacy of legislative intervention in the field of history—whereas the adoption of resolutions and organizing commemorations were probably more appropriate ways to express the solidarity of the Nation with the suffering of the victims. It considered that the creation of a criminal offense ... recognized by law incur[s] a high risk of being at odds with several principles recognized in our Constitution—in particular the principle of legality of crimes and sentences, the principle of freedom of opinion and expression and the principle of freedom of research.
The committee resolved to oppose the bill and will move to dismiss the legislation from the Senate on Monday.

The Armenian genocide is also a contentious issue in US law and politics. In November the US Court of Appeals for the Ninth Circuit [official website] decided to revisit a case [JURIST report] to determine whether a California law declaring Armenian genocide in Turkey conflicts with US foreign policy. 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. Erdogan condemned the resolution, and the Turkish government recalled its ambassador to the US.




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Supreme Court hears arguments in immigration cases
Julia Zebley on January 19, 2012 7:54 AM ET

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[JURIST] The US Supreme Court [official website] heard oral arguments [day call, PDF] in two cases on Wednesday, both dealing with different aspects of immigration. In Holder v. Sawyers [transcript, PDF; JURIST report], consolidated with Holder v. Gutierrez, the court heard arguments on whether alien children of legal residents can have their parents' years in the country imputed to them for the purposes of obtaining citizenship. The court also considered whether the children were citizens while they had residence with the legal parent. The Solicitor General argued that 8 USC § 1229b(a) [text] has always been clear that about requirements for resident and it implies that parents' residency does not automatically impute on to a child, which has been upheld through the discretion of the Board of Immigration Appeals consistently. The respondents' attorney argued that since the statute was silent as to imputation, it was inherently ambiguous: "the ambiguity arises because the requirements for which there is imputation, status and residency, are matters that are not within the capacity or the control of a minor. A minor does not decide whether or when a parent will apply for [lawful permanent resident] status for him or her."

The court also considered Vartelas v. Holder [transcript, PDF; JURIST report], to decide whether Rosenberg v. Fleuti [opinion text] should be applied to plaintiff Panagis Vartelas instead of current immigration law that repeals the law settled in Fleuti. Rosenberg v. Fleuti held that a permanent legal resident can make "innocent, casual, and brief" trips abroad without being denied reentry. But this interpreted law was changed by 8 USC § 1101(a)(13)(C)(v) [text], which holds that a permanent resident can be denied reentry if he has committed a crime of "moral turpitude" in the past. Vartelas pleaded guilty to a crime before the law was ratified and then left the US briefly and was denied reentry. Vartelas' attorney argued that the statute does not mandate retroactive application explicitly, as well as the relative fairness of the statute: "Covered lawful permanent residents could not visit their parents abroad without being forced to abandon their children here. They would be removed from the country or else confined here. Either way, they would lose an ability they had under pre-IIRIRA law based on pre-IIRIRA offenses. Thus applying the subsection to them would be impermissibly retroactive." The attorney for the Solicitor General argued that the law applied regardless, because Vartelas took the trip after the law was promulgated, and thus had constructive notice. Chief Justice John Roberts argued with the Solicitor General's lawyer about the peculiarity of the law itself: "Counsel, I have to—I just don't understand this statute. This is somebody we would not allow into the country. And yet the only thing we say is: You can't leave. I just don't understand how that—how that works. [...] [A]nd I understand that there is a limitation on actually deporting the person. But here I think the one thing you want the person to do is leave. Maybe for a particular event, but maybe he will decide to stay in Greece if once he's there for the—but it seems very odd to say: We are going to show you how much we don't want you here; we are not going to let you leave."




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Supreme Court rules for death row inmate in deadline case
Sarah Posner on January 18, 2012 2:19 PM ET

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[JURIST] The US Supreme Court [official website] ruled [opinion, PDF] Wednesday in Maples v. Thomas [SCOTUSblog backgrounder] that death row inmate Cory Maples sufficiently established cause excusing the procedural default rule when his attorney left his law firm causing Maples to miss a filing deadline. Maples' attorney argued that he effectively had no local counsel, thus the lack of proper notification to his true counsel, who had never withdrawn, was a clear error. The US Court of Appeals for the Eleventh Circuit had held [JURIST report] the state of Alabama may execute Maples without federal habeas review of his constitutional claims. In a 7-2 decision written by Justice Ruth Bader Ginsburg, the Supreme Court reversed. The court held that Maples was trapped when his counsel abandoned him without warning:
In the unusual circumstances of this case, principles of agency law and fundamental fairness point to the same conclusion: There was indeed cause to excuse Maples' procedural default. Through no fault of his own, Maples lacked the assistance of any authorized attorney during the 42 days Alabama allows for noticing an appeal from a trial court's denial of post conviction relief. As just observed, he had no reason to suspect that, in reality, he had been reduced to pro se status. Maples was disarmed by extraordinary circumstances quite beyond his control.
Since the district court and the Eleventh Circuit never reached the question of prejudice, the Supreme Court left the issue open for the lower courts to decide on remand.

An Alabama trial court had dismissed Maples' petition for post-conviction relief and sent notice of this ruling to his out-of-state attorneys, but the notice was returned to the court unopened because the attorneys had changed firms. The court's clerk did not attempt to notify his attorneys again. The clerk did, however, notify Maples' in-state attorney who neither acted nor notified the attorneys who were more directly involved in his case. Maples was convicted of capital murder for killing two people after a night of drinking. He had argued his counsel was ineffective because it failed to present evidence of his intoxication and his drug history, which he believed would have mitigated his sentence. The Supreme Court heard oral arguments [JURIST report] in the case in October.




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Supreme Court declines to rule on county board meeting prayers
Max Slater on January 18, 2012 1:19 PM ET

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[JURIST] The US Supreme Court [official website] on Tuesday declined to review [order list, PDF] a case concerning whether a county board of commissioners in North Carolina violated the Establishment Clause of the First Amendment [text] by opening their public meetings with prayers. In Joyner v. Forsyth County, decided last July, the US Court of Appeals for the Fourth Circuit [official website] held [JURIST report] that the Forsyth County Board of Commissioners [official website] violated the Establishment Clause by effectively using a public forum to endorse Christianity. The American Civil Liberties Union (ACLU) [advocacy website], which originally filed the lawsuit on behalf of two Forsyth county residents, applauded [press release] the Supreme Court's refusal to review the case, saying that the law was now settled on prayer in government meetings. Katy Parker, director of the ACLU of North Carolina Legal Foundation (ACLU-NCLF) [advocacy website] declared:
Overtly sectarian prayer does not belong in a government meeting. This is the same conclusion that was reached by three separate lower courts who heard our case. The law is now settled, and we are very happy that nobody in Forsyth County will feel like a second-class citizen because of what they believe.
The Supreme Court's decision not to review Joyner effectively makes the Fourth Circuit's decision final and ends a legal battle that began five years ago when the ACLU filed suit against the Board of Commissioners in 2007.

Public prayer has generated a substantial amount of controversy recently. In August, JURIST contributor John Whitehead noted [JURIST op-ed] that the Fourth Circuit's decision in Joyner contradicted precedent establishing that public officials beginning meetings with a prayer is constitutionally permissible. In April the US Court of Appeals for the Seventh Circuit [official website] dismissed [JURIST report] a constitutional challenge to the National Day of Prayer (NDP) [official website]. The Seventh Circuit's decision overturned a ruling [JURIST report] by the US District Court for the Western District of Wisconsin [official website] that the NDP was an unconstitutional government endorsement of religion.




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Supreme Court upholds Congress' authority to restore lapsed foreign copyrights
Michael Haggerson on January 18, 2012 12:52 PM ET

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[JURIST] The US Supreme Court [official website] ruled [opinion, PDF] Wednesday in Golan v. Holder [SCOTUSblog backgrounder] that Congress has the authority under the Copyright Act [text] to restore copyright protection in foreign works where the work was never registered in the US and the full copyright term has expired. Plaintiffs challenged § 514 of the Uruguay Round Agreements Act of 1994 (URAA) [text], which restored copyright protection to thousands of foreign works that had previously been in the public domain. Plaintiffs argued that (1) the Progress Clause [Art I, § 8, cl 8 text] of the US Constitution prohibits Congress from taking works out of the public domain; and (2) that § 514 violates the First Amendment [text] because taking works out of the public domain inhibits free speech. However, the Supreme Court stated that Congress was right to seek harmonization with international law:
Congress determined that U.S. interests were best served by our full participation in the dominant system of international copyright protection. Those interests include ensuring exemplary compliance with our international obligations, securing greater protection for U. S. authors abroad, and remedying unequal treatment of foreign authors. The judgment § 514 expresses lies well within the ken of the political branches.
The Supreme Court held that § 514 of the URAA does not exceed Congress' authority because the Copyright Clause does not specifically exclude extending copyright protection to works that are already in the public domain. The plaintiffs argued that § 514 violated the Progress Clause because protecting works that were already in the public domain does not "promote the progress of science and useful arts" because the intent of copyright protection was to incentivize the creation of new works, not to protect works which have already been created. However, the court held that "[t]he creation of new works ... is not the sole way Congress may promote ... knowledge and learning." Finally, the court held that §514 does not violate the First Amendment because copyright protection has "built-in First Amendment accommodations," such as the idea/expression dichotomy and the fair use defense, and that there is nothing in the historical record, congressional practice or the Supreme Court's jurisprudence which renders works in the public domain untouchable by Congress. The ruling affirms the US Court of Appeals for the Tenth Circuit's judgment that § 514 of the URAA did not violate the Constitution, overturning the district court's grant of summary judgment for the petitioners.

In December 2010, the Supreme Court split 4-4 [JURIST report] on the issue of copyright protection for imported goods. The case presented the question of whether the first-sale doctrine [17 USC § 109(a)], which provides that the owner of any particular copy "lawfully made under this title" may resell that good without the authority of the copyright holder, applies to imported goods manufactured abroad. Because of the split, with Justice Elena Kagan recused, the ruling of the US Court of Appeals for the Ninth Circuit [official website] that the first-sale doctrine does not apply to imported goods was affirmed, although the decision does not establish controlling precedent.




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UK panel will not complete investigation into torture allegations
Rebecca DiLeonardo on January 18, 2012 12:33 PM ET

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[JURIST] The chairman of the UKDetainee Inquiry [official website] said Wednesday that his panel will not complete their investigation [statement] into torture allegations against British intelligence agents. In his statement, Judge Peter Gibson said that the Secretary of State for Justice chose to conclude the investigation "in view of further Metropolitan Police investigations." The Inquiry faced criticism from a variety of human rights groups for its lack of transparency. Last August, 10 human rights groups said they would boycott the investigation [JURIST report], arguing that it did not comply with the European Convention on Human Rights [text, PDF]. Gibson stressed that although their investigation was not completed, they have conducted research which will be useful for future investigations:
We recognise that it is not practical for the Inquiry to continue for an indefinite period to wait for the conclusion of the police investigations. The Inquiry has, however, already done a large amount of preliminary work, including the collation of many documents from Government departments and the Security and Intelligence Agencies. We welcome therefore the opportunity to bring together the work we have done to date. The Inquiry will therefore produce a report of our work, highlighting themes which might be subject to further examination.
Gibson said that it was important to ensure that the Inquiry's work did not go to waste. The Metropolitan Police Service (MPS) [official website] will continue to investigate allegations of torture.

Last week, the MPS announced that there was not enough evidence to try British intelligence agents [JURIST report] for alleged complicity in the torture of two detainees. They indicated that they could reopen the cases if new information surfaced through the Detainee Inquiry. In the joint statement [text] of the MPS and the Director of Public Prosecutions [official website], they also announced the commencement of two new investigations of torture allegations in Libya. Last March former Pakistani president Pervez Musharraf [BBC profile; JURIST news archive] said in a BBC documentary that the UK gave "tacit approval" for torture [JURIST report] of terror suspects. In July 2010 UK Prime Minister David Cameron [official website] announced the creation of the Detainee Inquiry [JURIST report], after Human Rights Watch [advocacy website] urged [JURIST report] the UK government to investigate torture allegations and reaffirm its support for human rights.




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Guantanamo commander defends policy of reading prisoner mail
Dan Taglioli on January 18, 2012 11:13 AM ET

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[JURIST] The new policy that allows government officials to monitor Guantanamo Bay [JURIST backgrounder] prisoners' mail dominated the opening day of pretrial hearings for Guantanamo inmate and alleged USS Cole bomber Abd al-Rahim al-Nashiri [NYT profile; JURIST news archive] on Tuesday. The new policy allows members of a privileged review team to conduct a "plain-view review" of written communications [DOD press release] not marked as protected attorney-client information, such review being designed to ensure the correspondence does not include physical or information contraband such as maps of the detention facility. Navy Rear Adm. David Woods, commander of the Joint Task Force Guantanamo (JTF-GTMO), defended the policy, testifying that it balances his responsibilities to facilitate attorney-client communication while also ensuring security, safety, guard protection and good order at the facility. Specifically Woods testified that the reviewers do not actually read correspondence [CNN report], but simply look at mail to make sure each page is properly marked as privileged. This procedure then allows guards who monitor the inmates' cells to search the plastic bins reserved for legal paperwork and correspondence allowed in detainee living spaces, letting the guards ignore privileged papers and focus on contraband, which has been found in the "legal bins" in the past. Woods acknowledged that the policy depends on the professionalism of the review team, which is composed of former intelligence analysts, attorneys or law enforcement agents, but pointed out that each member is a civilian contractor who must sign a non-disclosure agreement that bars them from sharing any information, and that their contract does not fall under Woods' purview. The prosecution for the hearing called the issue and testimony irrelevant to the case because al Nashiri has not been subject to mail searches during his detainment at Guantanamo.

Lawyers for detainees at Guantanamo have previously raised concerns with practices used at the prison. Last November, lawyers complained specifically about the infringement on attorney-client privilege [JURIST report] in a letter directed to the attention of the Deputy Secretary of Defense for Detainee Affairs. The attorneys alleged that those working with the JTF-GTMO seize, open, interpret, read and review attorney-client privileged communications, actions which the attorneys argued are unlawful. Also in November J. Wells Dixon, Senior Staff Attorney for the Guantanamo Global Justice Initiative at the Center for Constitutional Rights, wrote that there is a systematic dysfunction within the bureaucracy of the Guantanamo Bay detention facility that impacts the capability of attorneys to adequately represent their clients: "Having traveled to Guantanamo numerous times over many years to meet with men detained there, it comes as no surprise to me that someone, somewhere in the bureaucracy of Guantanamo, ordered a disruptive and ultimately needless examination of legal papers and correspondence kept by detainees, including materials clearly marked as privileged." This month marks the tenth anniversary of detention operations at Guantanamo Bay [JURIST report].




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Ethiopia government committed abuses during relocations: HRW
Jennie Ryan on January 18, 2012 11:04 AM ET

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[JURIST] The Ethiopian government's relocation of thousands of indigenous people from the western Gambella region has resulted in possible human rights violations, according to a report [text] released Wednesday by Human Rights Watch (HRW) [advocacy website]. The Gambella relocations, which occurred last year, are part of a planned resettlement of 1.5 million people throughout four regions in the country. This process, known as villagization, has been called a success [AP report] by the Ethiopian government. HRW alleges [press release] that the forced relocation program has left those relocated without adequate access to basic necessities including "food, agricultural support, and health and education facilities." The advocacy group also reports alleged assaults by the state security forces charged with shepherding people to the Gambella region. HRW says they have uncovered ulterior motives for the relocations, which the Ethiopian government has said are necessary to afford villagers greater access to necessary services.
The villagization program is taking place in areas where significant land investment is planned and/or occurring. The Ethiopian federal government has consistently denied that the villagization process in Gambella is connected to the leasing of large areas of land for commercial agriculture, but villagers have been told by local government officials that this is an underlying reason for their displacement.
HRW is asking that the government halt plans to continue relocations until villagers receive access to necessary services.

This is not the first time HRW has criticized the actions of the Ethiopian government. Late last year, HRW released a statement criticizing an Ethiopian anti-terrorism law [JURIST report] as "fundamentally flawed and being used to repress legitimate reporting." HRW made the statement after two Swedish journalists were convicted [Bloomberg report] of supporting terrorism under Ethiopia's Anti-Terrorism Proclamation of 2009 [text]. Ethiopia's anti-terrorism law has faced ongoing criticism since it was passed [JURIST report] in 2009. In August, JURIST guest columnist and former executive director Abigail Salisbury argued that the government is using the law to suppress journalists and opposition groups in order to maintain its hold on power [JURIST op-ed]. In July, HRW called on the Ethiopian government to stop using the law to repress free speech [JURIST report].




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Supreme Court rules federal courts can hear lawsuits under telephone act
Jaclyn Belczyk on January 18, 2012 10:43 AM ET

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[JURIST] The US Supreme Court [official website] ruled unanimously [opinion, PDF] Wednesday in Mims v. Arrow Financial Services LLC [SCOTUSblog backgrounder] that the Telephone Consumer Protection Act [FCC summary, PDF] does not deprive the federal district courts of their federal question jurisdiction [28 USC § 1331 text] over private actions brought under the act. The US Court of Appeals for the Eleventh Circuit held [opinion, PDF] that the TCPA's permissive grant of jurisdiction to state courts means that federal courts lack jurisdiction over private actions under the act. Reversing the decision below, Justice Ruth Bader Ginsburg wrote:
The question presented is whether Congress' provision for private actions to enforce the TCPA renders state courts the exclusive arbiters of such actions. We have long recognized that "[a] suit arises under the law that creates the cause of action." ... Beyond doubt, the TCPA is a federal law that both creates the claim Mims has brought and supplies the substantive rules that will govern the case. We find no convincing reason to read into the TCPA's permissive grant of jurisdiction to state courts any barrier to the U. S. district courts' exercise of the general federal-question jurisdiction they have possessed since 1875. ... We hold, therefore, that federal and state courts have concurrent jurisdiction over private suits arising under the TCPA.
The case was remanded for further proceedings consistent with the opinion.

Congress passed the TCPA in 1991 in response to consumer complaints over abuses of telephone technology, including computerized calls to private homes. The act prohibits certain conduct and authorizes states to bring civil actions to enjoin prohibited practices and recover damages on citizens' behalf. The act also allows citizens to bring private causes of action. Petitioner Marcus Mims brought an action against Arrow Financial Services, a debt collection agency, seeking damages for numerous violations of the act. The district court dismissed his claim for lack of subject matter jurisdiction.




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Federal judge rejects appeal by Madoff trustee in Mets case
Katherine Getty on January 18, 2012 10:20 AM ET

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[JURIST] A judge for the US District Court for the Southern District of New York [official website] ruled on Tuesday that Madoff trustee Irving Picard cannot appeal [opinion, PDF] a ruling that threw out most of his $1 billion suit against the New York Mets. In the ruling Judge Jed Rakoff found that the only purpose an appeal would serve would be to delay the trial. Picard's suit alleged that Fred Wilpon and Saul Katz, owners of the baseball franchise, invested heavily in the Bernard Madoff [JURIST news archive] Ponzi scheme and failed to notice warning signs that told of Madoff's fraud. In Rakoff's 14-page opinion he found that allowing an interlocutory appeal before the rest of the litigation has played out would be counterproductive to the purpose of the trial. Additionally, he stated that only extraordinary circumstances would allow for deviation from the standard of waiting until the end of the trial for appeal and this case does not justify such action:
After careful consideration, the Court concludes that the Trustee has entirely failed to demonstrate the kind of extraordinary circumstances that would warrant this Court in granting his motion. Indeed, with the trial of this case firmly set to begin just two months from now, the main effect of granting the Trustee's motion would be to materially delay, rather than materially advance the ultimate termination of the litigation.
Rakoff's earlier ruling threw out all or part of nine of 11 of Picard's claims letting him pursue just over $300 million. The case is set to go to trial March 19, during the middle of the Mets spring training schedule.

In July the court approved [JURIST report] the first payouts to Madoff's victims. Picard filed almost 60 lawsuits [JURIST report] for victims of Madoff's fraud in December 2010, including suits against JPMorgan Chase and HSBC. Judge Louis Stanton made Picard the trustee [order, PDF] of Bernard L. Madoff Securities, LLC in December 2008. Madoff was sentenced [JURIST report] in June 2009 to 150 years in prison for securities fraud stemming from his Ponzi scheme. He pleaded guilty [JURIST report] to 11 counts of securities fraud in March 2009.




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Supreme Court hears arguments on tax assessments, qualified immunity
Jaclyn Belczyk on January 17, 2012 4:15 PM ET

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[JURIST] The US Supreme Court [official website] heard oral arguments [day call, PDF] Tuesday in two cases. In United States v. Home Concrete & Supply LLC [transcript, PDF; JURIST report] the court heard arguments on what can activate an "extended six-year assessment" period for taxes. The case questions if an understatement of gross income attributable to an overstatement of property assets can trigger this period. A Department of Treasury regulation holds that it does, and the court will also examine if this regulation should have judicial deference. The US Court of Appeals for the Fourth Circuit ruled [opinion, PDF] that the assessment should not have been initiated, and that the Department of Treasury's regulation was not holding. Counsel for the US argued that that Treasury Department's "regulations reflect a reasonable interpretation of ambiguous statutory language and they are accordingly entitled to deference under Chevron [opinion]." Counsel for Home Concrete & Supply argued that, "an overstatement of basis is not an omission from gross income."

In Filarsky v. Delia [transcript, PDF] the court heard arguments on whether a lawyer retained to work with government employees in conducting an internal affairs investigation is precluded from asserting qualified immunity [Cornell LII backgrounder] solely because of his status as a "private" lawyer rather than a government employee. Firefighter Nicholas Delia brought suit against the city of Rialto, the Rialto Fire Department, several city officials and a private attorney, Steve Filarsky, for violating his constitutional rights during an internal affairs investigation. The US Court of Appeals for the Ninth Circuit ruled [opinion, PDF] that Delia's rights were violated but that the officials were entitled to qualified immunity because the right was not clearly established. The Ninth Circuit also found that the private attorney was not entitled to qualified immunity. Counsel for Filarsky argued:

When a private attorney is temporarily retained by the government to work in coordination with or under the direct supervision of government employees in fulfilling the government's business, in getting the government's work done, that attorney is entitled to the same immunity that a government employee performing that same function for that same government would receive. In this case that is qualified immunity. That rule comports with the history and policy concerns that have animated this Court's section 1983 and immunity jurisprudence.
Counsel for the US government argued in support of Filarsky as amicus curiae. Counsel for Delia responded: "The Petitioner has not demonstrated a historical basis of immunity at common law for somebody in Mr. Filarsky's situation. The Petitioner has also not shown that the immunity's purposes also serve Mr. Filarsky's situation here."




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European Commission to challenge Hungary laws
Brandon Gatto on January 17, 2012 2:09 PM ET

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[JURIST] European Commission [official website] President Jose Manuel Barroso [official website] announced Tuesday that the Commission will legally challenge [press release] three Hungarian laws. The laws, passed last month in conjunction with Hungary's new constitution, are viewed by Barroso and the Commission as violations of EU law. First, the Commission contends that European law has instituted an independent national central bank, but Hungary's new law allows its Minister to participate in Monetary Council meetings, thus offering a possibility of political influence. Second, the Commission argues that EU law provides an independent judiciary and prohibits workplace discrimination based on age, but Hungary will proscribe a mandatory retirement age for judges, prosecutors and public notaries at 62 years. Third, the Commission asserts that EU law recognizes the independence of data protection supervisors, but Hungary will allow for premature termination of the Data Protection Commissioner currently in office. The Commission also contends that this law creates the possibility that the Hungarian prime minister and president could dismiss the new supervisor on arbitrary grounds. To deal with these possible infringements, Barroso and the Commission have sent three formal letters of notice to Hungary as a commencement of infringement procedures. Barroso said in a press release [text]:
The decisions we have taken today are a reflection of our determination to make sure that EU law, both in letter and in spirit, are fully respected and a stable legal environment exists in all of our Member States. Hungary is a key member of the European family. We do not want the shadow of doubt on respect for democratic principles and values to remain over the country any longer. The quicker that this is resolved the better.
Hungarian Prime Minister Viktor Orban [official website] has said [press release] that Hungary's "general approach is that we are open and flexible, we are ready to negotiate all the points but what we need is not political opinion but arguments." He has agreed to meet with Barroso next week to discuss the disputed laws.

Hungary has received much recent attention regarding its introduction of controversial laws. Earlier in the month, tens of thousands of protesters gathered outside of the Hungarian State Opera to protest the new constitution [JURIST report], which took effect January 1. Protesters criticized the constitution as giving the government too much power over the media, economy, and religion, which they believe to be clear violations of international human rights law. The Hungarian government, however, defended itself by asserting that the constitution, passed in April, was long overdue and embodies both national and European values. In December, Hungary's Constitutional Court [official website, in Hungarian] struck down [JURIST report] certain provisions of a recently passed media law as an unconstitutional restraint on freedom of the press in addition to a law regulating religious organizations [JURIST report]. Hungarian President Pat Schmitt signed the new constitution into law [JURIST report] amid societal concerns that the document contravenes European human rights principles. These concerns were echoed by Human Rights Watch [advocacy website], who said [press release] that Hungary's new constitution "enshrines discrimination."




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Rwanda genocide tribunal transfers prosecution materials to national government
Sung Un Kim on January 17, 2012 1:20 PM ET

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[JURIST] The International Criminal Tribunal for Rwanda (ICTR) transferred prosecution materials [press release] to the Rwandan government [official websites] on Monday for the first time with respect to a case stemming from the 1994 Rwandan genocide [BBC backgrounder; JURIST news archive]. The transfer was announced at a press conference by the ICTR's prosecutor Hassan Bubacar Jallow and Rwanda's Prosecutor-General Martin Ngoga [official profiles]. The decision to transfer the prosecution materials demonstrates the ICTR's recognition of Rwanda's capability to provide genocide defendants a fair and effective justice system, according to Ngoga. Jallow also commented on behalf of the ICTR:
The referral reflects our acknowledgement of the important advancements Rwanda has made in terms of law reform and capacity building within the justice system. With the assistance of donors, as well as the ICTR, these measures ensure that the legal system is consistent with international standards. With this renewed confidence in the capacity and robustness of Rwandan justice, we will encourage more cases to bereferred by the ICTR to Rwanda for trial.
One of the measures taken by the Rwandan government to comply with ICTR's international standard of a fair and effective justice system was the abolition of death penalty [JURIST report] in 2007. The ICTR had refused to deliver suspects of the 1994 genocide to the country while its death penalty was in effect.

The case involves the prosecution of the former Rwandan pastor Jean-Bosco Uwinkindi [Hague Justice profile; case materials]. Six months after he was transferred to Rwanda [JURIST report] to be tried before its national court system under Rule 11 bis authorizing the transfer of cases to appropriate national jurisdictions, the ICTR last month rejected Uwinkindi's appeal [JURIST report] upholding the decision of transfer. Uwinkindi was indicted [indictment, PDF] in 2001 and has been accused of genocide, conspiracy to commit genocide and crimes against humanity during the 1994 Rwandan genocide. He was arrested in July 2010 by Ugandan authorities and pleaded not guilty [JURIST reports].




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Spain high court begins first trial of judge Garzon
Hillary Stemple on January 17, 2012 12:50 PM ET

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[JURIST] The trial of Spanish Judge Baltasar Garzon [BBC profile; JURIST news archive], accused of ordering illegal wiretaps in jailhouses, began on Tuesday before a seven-judge panel of the Spanish Supreme Court [official website, in Spanish]. The court announced in October that Garzon would stand trial on the charges after the he was indicted in April [JURIST reports] for ordering the placement of wiretaps in jailhouses to record conversations between inmates and their lawyers. Garzon gave the order as part of an investigation into a network of businesses that allegedly gave money and gifts to members of Spain's Popular Party in exchange for government contracts. Garzon is facing a private prosecution [BBC report], which is permitted by Spanish law, after Spanish prosecutors asked that all charges against the former judge be dropped. The prosecution is being pursued by lawyers who had jailhouse conversations with their clients recorded by the wiretaps. They allege that Garzon violated their constitutional rights [CNN report] and exceeded his judicial authority by ordering the wiretaps. Garzon was suspended [JURIST report] by the General Council of the Judiciary in 2010 for abusing his power by opening an investigation into war crimes allegedly committed under Francisco Franco [BBC backgrounder] during the Spanish Civil War. He faces a second private prosecution related to the abuse of power charges [JURIST report], which is scheduled to begin next week.

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




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Algeria court sentences former Guantanamo detainee to prison
Max Slater on January 17, 2012 12:21 PM ET

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[JURIST] An Algerian court on Monday sentenced former Guantanamo Bay [JURIST news archive] detainee Abdul Aziz Naji [NYT profile] to three years in prison for his participation in a foreign extremist group affiliated with al Qaeda. The sentence was less than the 10 years in prison and USD $6,330 fine sought by the prosecution. Naji was captured in 2002 near Kashmir and transferred to Guantanamo. In July 2010 the US extradited him to Algeria [JURIST report] after the US Supreme Court [official website] declined to stop the transfer [JURIST report]. Shortly following his release, the Algerian prosecutor's office indicted him but did not specify the charges [JURIST report]. Naji's lawyer, Hassiba Boumerdassi plans to appeal the ruling [AFP report], declaring that prosecuting Algerian citizens for their membership in an overseas extremist group is unprecedented in Algeria.

Last January the US Department of Defense [official website] transferred Guantanamo inmate Farhi Saeed Bin Mohammed to Algeria [JURIST report] following a court order from the US District Court for the District of Columbia [official website]. In April 2010 lawyers for another Algerian Guantanamo inmate, Ahmed Belbacha, filed an emergency motion [JURIST report] in the same district court for a stay of his transfer to Algeria. In February 2010 an Algerian court acquitted a former Guantanamo detainee [JURIST report] of the charges of counterfeiting and affiliation with an extremist group. In January 2010 the US transferred two Algerian nationals back to their home country [JURIST report] after they had each spent more than five years at Guantanamo.




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France judge requests access to Guantanamo to probe torture allegations
Hillary Stemple on January 17, 2012 11:43 AM ET

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[JURIST] A French judge has requested access to information from Guantanamo Bay [JURIST backgrounder] in order to investigate allegations of torture being made by three French citizens. Judge Sophie Clement requested access to documents, as well as access to individuals who had contact with the men during their arrest and detention by the US government. Clement is specifically seeking information relating to the justification for the detention [AFP report] of the men, who were all arrested in late 2001 near the Afghanistan-Pakistan border. She is also asking for information related to US military operations in Afghanistan and Pakistan that led to their arrest, as well as the treatment of the men during their arrest and detention. The men, Nizar Sassi, Mourad Benchellali and Khaled Ben Mustapha, claim to have been subject to sexual abuse, beatings and sleep deprivation [AP report] during their detention. The men were returned to France in 2004 and 2005, and were sentenced to one year in prison on terrorism charges in 2011. A lawyer for two of the men indicated that Clement's actions were unprecedented and that he was hopeful her actions would allow his clients to identify the individuals responsible for their detention and alleged torture.

The US facility at Guantanamo Bay remains a controversial aspect of the US "war on terror," and numerous allegations of torture have been made by former prisoners, prompting multiple investigations. In April a Spanish judge announced that the Spanish National Court would not investigate [JURIST report] six Bush administration officials pursuant to torture claims from Guantanamo Bay after the US Department of Justice (DOJ) [official website] provided a letter assuring Spain that the US is investigating the treatment of detainees and has already completed federal criminal prosecution for the detainee mistreatment. In February 2011, the Spanish National Court agreed to continue investigating [JURIST report] allegations of a Moroccan man who claims that he was tortured while detained at Guantanamo Bay. The court first opened the investigation in April 2009 [JURIST report], looking into torture allegations at Guantanamo Bay made by four former prisoners. The court based its decision on statements by the prisoners who claimed they were subject to various forms of physical and mental abuse during their imprisonment, as well as CIA interrogation memos [JURIST report] detailing a plan which allegedly authorized the systematic torture and mistreatment of persons who were deprived the basic rights of detainees.




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Maldives military arrests chief justice of criminal court
Dan Taglioli on January 17, 2012 11:13 AM ET

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[JURIST] The Maldives military Monday arrested the chief justice of the nation's criminal court after he released a detained opposition leader. Judge Abdulla Mohamed was arrested for corruption [WP report] in an unprecedented move by the military that has sparked street protests and prompted all the country's courts to boycott sessions. Opposition activists claim the arrest was made in retaliation for the judge's ruling a day earlier that opposition leader Mohamed Jameel Ahmed was being illegally detained under an old criminal defamation law that is not part of the current democratic law established in 2008. The country's prosecutor general's office has said that under the constitution a judge can be arrested only after a supreme court decision to do so. The supreme court, the prosecutor general's office and judicial services commission all issued statements calling the judge's arrest illegal and requesting his release. At least 200 protesters gathered Tuesday near the police and military headquarters demanding adherence to court orders and release of the arrested judge, but police and soldiers used batons to disperse them.

The Maldives has faced ongoing political difficulties following the adoption of its constitution [JURIST report] in late 2008. President Mohamed Nasheed [official website] defeated longtime political opponent Maumoon Abdul Gayoom [BBC profile], who had jailed him numerous times during his 30-year rule. However, opposition legislators have blocked the ruling party's legislative agenda, leaving certain crucial provisions of the new constitutional system unestablished. This resulted in the resignation of Nasheed's entire cabinet [BBC report] in June 2010. The Maldives Constitution [text, PDF] provides for multi-party elections, an independent judiciary and grants more authority to the legislature. It also enumerates fundamental rights of citizens and establishes several special commissions on issues relating to human rights and corruption. The new constitution was drafted in response to international criticism [AI report, PDF] of 2003 government actions against protesters of prison conditions in the country.




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Europe rights court blocks deportation of Muslim cleric
Dan Taglioli on January 17, 2012 10:36 AM ET

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[JURIST] The European Court of Human Rights (ECHR) [official website] Tuesday blocked the deportation [judgment; press release] of a Muslim cleric from the UK to Jordan. Abu Qatada is a Palestinian-Jordanian Islamic scholar who fled the Middle East under persecution to London in 1993, where he was granted political asylum. The ECHR has blocked deportation on the grounds that the evidence of his involvement in two terrorist conspiracies had been obtained by Jordanian authorities by torturing one of Qatada's co-defendants, and there is widespread use of torture evidence by Jordanian courts. The UK government has been trying to deport Qatada [BBC report] since 2005, but he maintains that in Jordan he will face extended confinement, an unfair trial, and perhaps torture:
[Qatada] argued that his high profile would mean he would be of real interest to the Jordanian authorities. If returned, he would also face retrial for the offences for which he had been convicted in absentia. He would thus face lengthy pre-trial detention ... and, if convicted, would face a long term of imprisonment. All these factors meant he was at real risk of torture, either pre-trial or after conviction, to obtain a confession from him or to obtain information for other reasons. ... [H]e alleged that his retrial would be flagrantly unfair: the State Security Court, a military court, lacked independence from the executive and there was a real risk that evidence obtained by torture—either of him, his co-defendants or other prisoners—would be admitted against him.
The ECHR denied the other claims and blocked deportation based only on a finding of real risk of admission at Qatada's retrial of evidence obtained by torture of third persons.

Qatada was granted political asylum by the UK in 1994. When he was arrested in 2001 under the Prevention of Terrorism Act 1989, police seized a sizable sum of money in various currencies for which no explanation was given. Later in 2001, he went into hiding to avoid being arrested and detained under the then-proposed Anti-Terrorism, Crime and Security Act 2001. He was arrested again in 2002 and held until March 2005 when he was released pursuant to a House of Lords judgment declaring his detention without trial to be unlawful. In February 2009 the ECHR ordered the UK to pay £2,500 in damages [JURIST report] to Qatada after determining that his imprisonment violated the European Convention on Human Rights [official website]. Despite his previous grant of asylum and fears of torture and persecution, UK Law Lords in February 2009 ruled that Qatada could be returned [JURIST report] to Jordan to face terrorism charges. The February decision overruled an April 2008 Court of Appeal decision blocking his deportation [JURIST report].




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Supreme Court to rule on federal liability for credit card information leak
Andrea Bottorff on January 17, 2012 10:15 AM ET

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[JURIST] The US Supreme Court [official website] granted certiorari [order list, PDF] Friday in US v. Bormes [docket; cert. petition, PDF] to determine whether the federal government has sovereign immunity for damages arising from the Fair Credit Reporting Act (FCRA) [text, PDF]. The US Court of Appeals for the Federal Circuit ruled in 2010 that the Little Tucker Act [Cornell LII backgrounder] waived sovereign immunity [opinion] for money claims against the US under the FCRA. Lawyer James Bormes filed the class action lawsuit after realizing that portions of his and others' private credit card information displayed on a government website following payment of federal court fees. Bormes claims that the disclosure of private credit card information violates the FCRA and is seeking damages against the government on behalf of the class.

The court agreed Friday to rule in Kloeckner v. Solis [docket; cert. petition, PDF] to determine appellate jurisdiction in wrongful termination and discrimination cases for federal employees. The court will determine whether a party may appeal a case involving both wrongful termination and discrimination claims to the US Court of Appeals for the Federal Circuit or a district court, when the Merit Systems Protection Board (MSPB) [official website], which hears cases involving federal employees, decides the case without determining the merits of a discrimination claim. The confusion arises from provisions in the Civil Service Reform Act of 1978 [text] that place cases involving discrimination in district courts. The US Court of Appeals for the Eighth Circuit ruled [opinion, PDF] last year that because the MSPB did not address the merits of the employee's discrimination claim, the Federal Circuit had jurisdiction over the appeal.

The court also agreed to rule in Cavazos v. Williams [docket; cert. petition, PDF] to determine whether a petitioner's habeas corpus [LII backgrounder] claim has been properly decided on its merits when a state court denies the claim without acknowledging a federal law basis for the claim in its opinion. The US Court of Appeals for the Ninth Circuit ruled last year that Tara Williams' imprisonment was unconstitutional [opinion, PDF] because the court did not adjudicate the case on its merits when it failed to consider Williams' Sixth Amendment [text] claim. Williams was sentenced to life in prison without parole on murder charges after the trial court dismissed a known holdout juror.

On Tuesday, the court granted [order list, PDF] the addition of two parties in three separate cases concerning healthcare reform law: Department of Health and Human Services v. Florida, National Federation of Independent Business v. Sebelius, and Florida v. Department of Health and Human Services [dockets]. The new parties are small business owners who oppose the federal individual insurance mandate and their addition will avoid a possible standing dispute [motion, PDF] since the original small business owner in the case recently filed for bankruptcy. The court granted certiorari [JURIST report] in the cases in November to determine the constitutionality of the Patient Protection and Affordable Care Act (PPACA) [text; JURIST backgrounder]. All three cases arose out of the US Court of Appeals for the Eleventh Circuit, which ruled in August that the individual insurance mandate is unconstitutional but severable [JURIST report], upholding the rest of the law.




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HRW calls on new Egypt parliament to expand rights
Jerry Votava on January 17, 2012 7:41 AM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] on Monday called on [report, PDF] Egypt's newly elected parliament to pursue an agenda to reform nine areas of Egyptian law [press release] that impede freedom and restrict rights. Some of the reforms urged include ending the state of emergency, reforming police law and expanding freedom of expression. In the report, HRW said:
Over the past year, Egyptians have experienced many of the same human rights abuses that characterized Mubarak's police state. Under the leadership of the Supreme Council of the Armed Forces (SCAF), excessive use of force, torture, attacks on peaceful protests, and arbitrary arrests of peaceful protesters, bloggers, and journalists have become commonplace and illustrate how little has changed. Ending these abuses will only occur when there is political will to break with the past and truly reform the country's oppressive machinery.
The report also prescribes strengthening the criminal penalties for police abuse, amending Egypt's definition of torture to be in line with international standards and allowing independent NGOs to operate lawfully in the country.

In November HRW urged [JURIST report] the Egyptian government to release Alaa Abd El Fattah [blog; Twitter feed], a blogger and activist who engaged in protests and accused the SCAF of committing abuses. Also in November the UN Office of the High Commissioner for Human Rights [official website] expressed [JURIST report] in its briefing notes [text] concerns over Egypt's limitations on freedom of expression and association. In October HRW reported [JURIST report] that proposed Egyptian political corruption law amendments had the potential for abuse.




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Philippines chief justice impeachment trial begins
Jerry Votava on January 16, 2012 12:35 PM ET

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[JURIST] The Philippine Senate [official website] on Monday began the impeachment trial [press release] of Chief Justice Renato Corona [official profile] for violating the constitution and the public trust in connection with the trial of former president Gloria Macapagal Arroyo [BBC profile; JURIST news archive], who originally appointed Corona to the Supreme Court. There are eight charges [text] against Corona, including failure to disclose his personal finances and several allegations of partiality. The most high profile of the allegations includes a charge of partiality when it comes to the trial of Arroyo. If found guilty, Corona will likely be forced out of office. Senator Francis "Kiko" Pangilinan [official website] said that the impeachment would "[exact] public accountability from high-ranking public officials," and such accountability "is necessary if our society is to have a healthy respect for the rule of law."

Former president Arroyo has been a target of anti-corruption efforts by President Benigno Aquino [BBC profile]. Arroyo was recently arrested [JURIST report] in the hospital before she was able to leave the country to seek medical treatment. Corona presided over the court that voted to allow Arroyo to travel [JURIST report] to receive medical care, temporarily restraining the restrictions on Arroyo's travel in connection with several pending charges against her. 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 against her. 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, Aquino 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 criticizes US for Guantanamo rights violations
Rebecca DiLeonardo on January 16, 2012 12:21 PM ET

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[JURIST] The Russian Ministry of Foreign Affairs (MFA) [official website] criticized the US human rights record, including the indefinite detention of Guantanamo Bay [JURIST backgrounder] detainees, in a report [text, PDF] made public on their website Sunday. The 90-page report, which addresses human rights issues throughout the world, dedicates 20 pages to the situation in the US, and calls the situation in Guantanamo "the main outstanding [human rights] issue" in the US. The report also alleged growing racial discrimination problems, unacceptable prison conditions and erosion of citizens' rights:
Longstanding systematic problems of the American society are aggravating, such as racial discrimination, xenophobia, overcrowded prisons, unreasoned use of death penalties, in particular with respect to innocent, minor and mentally disabled persons, as well as flawed electoral system and corruption. There has been a sharp worsening of situation concerning the fulfillment of basic social and economic rights of citizens, including collective bargaining rights. Permanent deficits of federal and local budgets revealed gaps in the judicial system, including inadequate access to justice.
The report criticizes President Barack Obama [official website] for revising his stance on Guantanamo prison [JURIST comment], and failing to expand basic human rights during his presidency. In addition to the US, the report addresses human rights concerns in Germany, France, Great Britain, Poland, Canada and other states.

This report marks the first time that the MFA has issued a statement regarding the state of affairs of human rights in other countries, although Russia has been criticized internationally and by its own citizens for its human rights record. In December, the Russian Presidential Council on Civil Society and Human Rights called for the annulment [JURIST report] of the conviction of ex-oil tycoon Mikhail Khodorkovsky [defense website; JURIST news archive]. Also in December, Russian President Dmitry Medvedev [official website, in Russian] ordered an investigation into allegations of fraud [JURIST report] in recent parliamentary elections. Earlier, the Organization for Security and Co-operation in Europe (OSCE) [official website] issued preliminary findings [JURIST report] that the Russian election was "characterized by frequent procedural violations and instances of apparent manipulation." The US State Department [official website] and other world leaders have also called for an investigation into the allegations of election fraud and expressed concern over "harassment" of election monitoring groups.




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Pakistan high court begins contempt proceedings against PM
Rebecca DiLeonardo on January 16, 2012 11:05 AM ET

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[JURIST] The Supreme Court of Pakistan [official website] began contempt proceedings against Prime Minister Yousuf Raza Gilani [BBC profile; JURIST news archive] Monday after he refused to comply with a court order. The prime minister was ordered to appear in court Thursday [AP report] to explain why he did not comply with the court's order to reopen a corruption case against President Asif Ali Zardari [official website]. Last week, the Supreme Court warned [JURIST report] Gilani that failure to comply could result contempt charges and removal from office. The conflict between the prime minster and the court stems from an order which struck down [JURIST report] the National Reconciliation Ordinance (NRO) [text] in 2009, which granted immunity to Zardari and 8,000 other government officials from charges of corruption, embezzlement, money laundering, murder and terrorism between January 1986 and October 1999. Gilani has not acted on the court's orders, maintaining that the president has immunity from prosecution [AP report].

These proceedings reflect an ongoing struggle between the government and the courts in Pakistan. Last month, the Supreme Court formed a judicial committee to investigate a secret memo [JURIST report] sent from an unknown Pakistani source to US Admiral Mike Mullen in May asking for help in preventing a suspected army coup. Zardari and former Pakistan ambassador to the US Husain Haqqani have been accused of writing or having knowledge of the memo, and both have denied these allegations. In October, the Supreme Court issued a judgment urging political parties to stop financing criminal groups [JURIST report] responsible for increased violence in the city of Karachi. The decision stated that militant groups have gained strength because of support from local political groups and ordered the Pakistani government to help address the corruption. The court struck down the NRO in 2009, which was signed [JURIST report] by former Pakistani president Pervez Musharraf [BBC profile] in 2007.




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Bahrain king announces constitutional reforms
Julia Zebley on January 15, 2012 12:23 PM ET

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[JURIST] In a speech [transcript] on Sunday, Bahraini King Hamad bin Isa Al Khalifa [official profile] promised to amend the nation's constitution [text] to allow the National Assembly [official profile] more oversight of ministers and cabinet members. If passed, the amendments would allow both houses of the National Assembly to monitor one another, as well as minister and cabinet appointments, whereas before this was the sole province of the King and Prime Minister. The speech also suggested new economic powers for the National Assembly, designed to allow the bodies to pass emergency budgets expediently. Al Khalifa did not explicitly reference any of the recent protests in Bahrain, instead commending his country's commitment to democracy and asking that dissenters pursue lawful solutions:
We cannot fail at this point to emphasize that democracy is not just literature, or constitutional and legislative provisions. Democracy is a culture and practice, commitment to the rule of law, respect for the international principles of human rights, coupled with serious national political action that represents all spectrums of society without exclusion or quotas. In parallel with this crucial step that we take today, we call for other important steps to be made to reinforce the democratic culture and practice on the land of our beloved country. Furthermore, we call upon all segments of society—the community and the family—to work together to ensure that our young people respect the law. This is a responsibility that must be shouldered by all, especially when respect for the law is linked to the principles of coexistence, tolerance, harmony and love.
Although several officials praised the speech [BNA report] and reforms, others were less impressed. Opposition group Al Wefaq [advocacy website, in Arabic] rejected [press release, in Arabic] the proposed reforms, stating that the government is continuing to ignore the will of the people and will only increase the tension and violence in the nation. The amendments were referred to the Shura council [BNA report] later on Sunday.

Protests and demonstrations in Bahrain [BBC backgrounder] have been ongoing since February 2011 [JURIST report]. Earlier this month, a Bahraini court on overturned the death sentences for two protesters convicted of killing two police officers during the demonstrations that took place in the country last year. The original conviction [JURIST report] was rendered by a special security court set up as part of the emergency law in place while the country's Sunni rulers attempted to silence a Shiite-led to effort bolster civil and political rights in the country. In December, UN High Commissioner for Human Rights Navi Pillay said that the Bahrain government should release prisoners detained during peaceful protests [JURIST report] and focus on rebuilding national trust in the government. Pillay's statement followed a visit by a team of human rights officials to Bahrain at the invitation of the Bahrain government. In November, Al Khalifa ordered a special commission [JURIST report] to look into government recommendations made in a report by an independent Bahraini government commission. The report stated that Bahrain authorities used excessive force [JURIST report] and tortured detainees involved in the pro-democracy demonstrations earlier this year. Also in November, the Bahrain government admitted the use of excessive force [JURIST report] in anticipation of the independent report.




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UN Secretary General demands end to violence in Syria
Matthew Pomy on January 15, 2012 11:49 AM ET

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[JURIST] In a statement at a conference on democracy in the Arab world Sunday, UN Secretary General Ban Ki-Moon [official profile] demanded that Syrian President Bashar al-Assad [BBC backgrounder] end the violence against the Syrian people. In his speech, Ban indicated that it is time for Assad to usher in democracy [SkyNews report] and recognize that the days of one-man rule and perpetual family dynasties are ending. Ban encouraged all Arab nations to embrace real reform [AP report] and democracy, including respecting the role of women and the youth in society. In his statement Ban acknowledged that the path to democracy may be difficult, but indicated that Arab nations must move forward in their democratic efforts. Ban's remarks addressing the situation in Syria came as Assad released a statement [SANA report] granting amnesty for crimes including peaceful demonstration, carrying or possessing unlicensed firearms, and evasion of military service, which occurred between March 15, 2011 and January 15, 2012.

Earlier this month, as part of an agreement with the Arab League [official website, in Arabic], Syria released [JURIST report] more than 500 prisoners. Last month, Ban condemned [JURIST report] leaders of the Syrian government and violent protesters for the continuous bloodshed within the country. Also last month, Human Rights Watch (HRW) [advocacy website] issued a report [JURIST report] alleging that Syrian army commanders and officials have ordered troops to attack unarmed protesters as part of an effort to stop public demonstrations. The violence in Syria has also been condemned by the UN Human Rights Council, the UN General Assembly's Human Rights Committee and the Arab League [JURIST reports]. The UN Office of the High Commissioner for Human Rights [official website] reports that more than 5,000 people have died since anti-government protests began last March.




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Two business groups challenge Obama's recess appointments
Julia Zebley on January 15, 2012 11:28 AM ET

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[JURIST] Two business advocacy groups filed motions [press release] in the US District Court for the District of Columbia [official website] on Friday, contesting the constitutionality of US President Barack Obama's [official website] recent recess appointments [JURIST report]. The National Right to Work Foundation (NRWF) and the National Federation of Independent Business (NFIB) [advocacy websites] contend that the recess appointments are not constitutional as the Senate was technically in a pro forma session, thus providing no recess during which Obama could make appointments. The motions were filed in relation to the groups' ongoing suit challenging the National Labor Relations Board (NLRB) [official website] mandate that rights to unionize [JURIST report] be posted in all workplaces. In a press release, the NFIB also stated that they have amended their complaint [text] to include new charges that the NLRB cannot function to enforce new rules, in part due to Obama's recess appointments:
The President's action was a surprise and terrible disappointment to small-business owners throughout the country who have suffered under the unabashedly pro-union rule-makings handed down by the NLRB. These alleged recess appointments are a brazen circumvention of the Congressional appointment process and raise serious legal concerns that cannot be ignored. The outrage amongst members of the small-business community is severe, and NFIB takes this action today to ensure that its members are protected from unconstitutional acts that exacerbate the NLRB's devolution from a neutral arbiter between labor and employers to a pro-union government agency.
Earlier this month, Obama used recess appointments to install Richard Cordray [WP backgrounder] as director of the Consumer Finance Protection Bureau [official website] and appointed [press release] Sharon Block, Terence F. Flynn and Richard F. Griffin as new board members for the NLRB.

The US Department of Justice (DOJ) [official website] defended the use of recess appointments [CRS backgrounder, PDF] by Obama immediately after his announcement. The Recess Appointment Clause [Constitution, Article II, § 2 text] gives the president the "power to fill up all vacancies that may happen during the recess of the Senate." The DOJ's memo argues that although the Senate met between January 3 and 23, the sessions were not sufficient to constitute an interruption of a recess under the Recess Appointment Clause because they were only pro forma sessions that lasted less than a minute and there was no intent to conduct any business. Some experts argue that recess appointments have regularly been used by presidents [JURIST op-ed] since George Washington. It is only a relatively recent practice that obstructionists have begun holding perfunctory pro forma sessions every three days while the Senate is on recess in order to block recess appointments.




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Canada to change marriage law to legally recognize all non-resident same-sex marriages
Matthew Pomy on January 15, 2012 10:57 AM ET

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[JURIST] Canadian Justice Minister Rob Nicholson [official profile], amid a growing controversy over a previous declaration [JURIST report] that non-resident same-sex marriages [JURIST news archive] performed in Canada are not legal unless recognized by the participants' home countries, indicated Friday that the Canadian government considers all same-sex marriages performed in Canada to be legal, and that the Civil Marriage Act [text] will be altered to reflect the government's position. The controversy came to light when a non-resident lesbian couple who were wed in Toronto filed for divorce. They were told that they were not able to divorce because they were never legally married. Nicholson claimed the controversy over the law was due to a gap [Globe and Mail report] in the Civil Marriage Act which he says will be remedied to resolve the issue. According to Nicholson, the Act will be changed so that all marriages performed in Canada will be legally recognized in the country [Reuters report]. Nicholson also indicated that the government has no intention of reopening the debate on the definition of marriage. An estimated 5,000 foreign same-sex weddings have been performed in Canada since 2003, when the first Canadian provinces began allowing same-sex marriage.

Although same-sex marriage is recognized across Canada, various provinces have interpreted rights in different ways. In October, a judge for the Queen's Court Bench of Alberta [official website] granted custody [JURIST report] of a child to a non-biological father who was an ex-partner of the biological father. In January, the Saskatchewan Court of Appeals [official website] ruled [JURIST report] that refusal by provincial marriage commissioners to marry same-sex couples is unconstitutional and thereby invalidated a proposed amendment to Saskatchewan's Marriage Act of 1995 that would have allowed the commissioners to refuse to marry same-sex couples based on their religious beliefs. Canada legalized same-sex [JURIST report] marriage in 2005 with the passage of the Civil Marriage Act.




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UN SG underlines commitment to Lebanon
Michael Haggerson on January 14, 2012 2:41 PM ET

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[JURIST] UN Secretary-General Ban Ki-moon [official website] underscored his commitment to Lebanon's security and sovereignty [press release; transcript] on Friday. Ban Ki-moon stated: "This is a critical moment in the region. It is a time for meaningful change; time to stop the violence and end injustice; time to give people the opportunities they deserve to build a better life." Ban Ki-moon reiterated "that there remain no arms outside the authority of the State" and expressed concern over the military capacity of Hezbollah [JURIST news archive] in the region. In response, Hezbollah leader Sayyed Hassan Nasrallah dismissed [Reuters report] Ban's call for Hezbollah to disarm and stated that he was happy that Hezbollah's military power was a cause for concern. Ban also stated that he expected Lebanon to continue complying with the Special Tribunal for Lebanon (STL) [official website], which is investigating the 2005 murders of former Lebanese Prime Minister Rafik Hariri [JURIST news archive] and 22 others.

In November, US Secretary of State Hillary Clinton [official profile] urged Hezbollah not to resort to violence [text, JURIST report] in an attempt to impede the investigation of the STL. In an interview published by the Lebanese Newspaper An-Nahar [official website], Clinton reiterated US support for Lebanon and noted that the work of the STL is "legitimate and necessary." She also stressed the independence of the tribunal and that "no one knows what the Special Tribunal is going to do, who it might indict, or when it might choose to move forward." Clinton's interview followed remarks made by Hezbollah leader Hassan Nasrallah [BBC profile], who said he would "cut off the hands" of any person attempting to arrest a Hezbollah member in connection with the murder. Nasrallah has previously called for all Lebanese to boycott the STL [JURIST report] after information surfaced suggesting that the tribunal is set to implicate members of Hezbollah as participants in the assassination of Hariri.




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Federal court rules California prison officials failed to protect disabled inmates
Michael Haggerson on January 14, 2012 1:52 PM ET

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[JURIST] Judge Claudia Wilken of the US District Court for the Northern District of California [official website] ruled on Friday that California prison officials have failed to protect disabled parolees by not providing them wheelchairs and other mobility assistance devices. She stated that prison officials have failed to comply with her ruling in a 1994 suit [San Francisco Chronicle report] that required prisons to provide assistance for disabled inmates. Prison officials argued that the mobility assistance devices could be used as weapons and that they are not responsible for disabled inmates. Wilken ruled that as it is the state's decision to revoke parole, must protect disabled parolees' legal rights when they are confined. She also held that prison officials had to provide wheelchairs and chains, could not deny inmates the right to file and grievances and could not exclude disabled inmates form drug treatment programs.

The Supreme Court [official website; JURIST news archive] ruled in Brown v. Plata [Cornell LII backgrounder; JURIST report] to uphold an order [JURIST report] requiring California to release up to 46,000 prisoners to remedy the state's overcrowded prisons [JURIST news archive]. Counsel for the state of California argued that the "extraordinary and unprecedented order ... requiring the release of between 36,000 and 45,000 inmates ... is extraordinarily premature." Counsel for the prisoners argued that the court must allow the lower court to provide a remedy for 20 years of overcrowding that has violated inmates' constitutional rights. The California prison system was operating at nearly 200 percent capacity. The three-judge panel, whose decision was upheld by the Supreme Court, ordered California to reduce the population by 46,000 inmates to be under 137.5 percent institutional capacity within two years. California Governor Jerry Brown [official website] submitted a plan [JURIST report] to comply with the court order and relieve prison overcrowding in June. As of January, California has reduced its prison population by 11,000 prisoners [report to court, PDF] and is now operating at 167 percent capacity.




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US House postpones hearings on Internet bill SOPA
Jamie Davis on January 14, 2012 9:59 AM ET

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[JURIST] Representative Darrell Issa (R-CA) [official website] announced [press release] Saturday that the US House of Representatives [official website] will postpone hearings on the Stop Online Piracy Act (SOPA) [text, PDF], a day after the bill's main sponsor Representative Lamar Smith (R-TX) [official website] agreed to remove the highly contested [press release] Domain Name System (DNS) blocking provision of the bill. That section would have required Internet Service Providers (ISP) to block any foreign website suspected of copyright infringement. The bill is aimed at expanding the power of the United States Department of Justice (DOJ) and holders of copyrights to stop the spread of copyright infringement and counterfeit goods through the Internet. If the bill passes, the DOJ and copyright holders will be allowed to obtain court orders requiring advertising agencies and others who use a site's services to stop payments to the accused site. In regards to the bill, Smith said:
We will continue to look for ways to ensure that foreign websites cannot sell and distribute illegal content to U.S. consumers. Current law protects the rights of American innovators by prohibiting the illegal sale and distribution of their products by domestic websites. But there is no equivalent protection for American companies from foreign online criminals who steal and sell American goods to consumers around the world. Congress must address the widespread problem of online theft of America's technology and products from foreign thieves.
Many well-known websites have voiced their opposition to the bill. Earlier this week, popular social news site Reddit [website] announced it will shut down its site [press release] for twelve hours in protest to the bill. Reports have also suggested [CNet report] that other Internet sites such as Facebook, Twitter, Wikipedia and Google [websites] are also considering "blackouts" in order to stop the bill's momentum. The Obama administration also came out against provisions of SOPA [press release] on Saturday.

Recently, there has been a surge in government attention to copyright issues. Earlier this month, the Spanish government approved a new law [JURIST report] that creates a government agency with the authority to force Internet service providers to block certain websites that are involved in pirating copyrighted material. The European Court of Justice (ECJ) ruled in November that ISPs cannot be required by law to monitor [JURIST report] their customers' activities as an attempt to combat illegal sharing of copyrighted material. In October, the US Supreme Court considered the issue of foreign copyrights in the case of Golan v. Holder when it considered arguments to determine the copyright status of foreign works [JURIST report] that used to be in the public domain. A judge for the US District Court for the Southern District of New York ruled that a music file-sharing site could be held liable for contributory copyright infringement [JURIST report] in August.




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Moldova court throws out presidential election results
Michael Haggerson on January 13, 2012 2:15 PM ET

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[JURIST] The Moldovan Constitutional Court [official website, in Romanian] on Thursday threw out the results [press release, in Romanian] of the recent presidential election and canceled the run off vote planned for January 15. The court ruled that many parliamentary deputies violated the secrecy of the voting procedure [RIA Novosti report] by showing their ballots to TV cameras to show their support of parliamentary speaker and acting president Marian Lupu. Lupu fell three votes shy of the 61 votes required for election, out of 101 deputies. Moldova has been without an official president since 2009.

Moldova's main political parties, the pro-EU party and the Communist Party, have been deadlocked since Moldova's last president, Vladimir Voronin, resigned [RFE/RL report] in September 2009. Lupu has unsuccessfully run for president three times [RFE/FL report]. Voronin, leader of the opposition Communist Party, stated that he refuses to support Lupu but indicated that Moldova could end the deadlock by voting for a non-parliamentary, non-partisan candidate. In April 2009 the Moldovan Constitutional Court confirmed controversial election results [JURIST report] which gave the Communist Party 60 of the 101 parliament seats, after it had ordered a recount [JURIST report] after accusations of falsified voter registration rolls.




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Myanmar begins release of political prisoners
Jaimie Cremeans on January 13, 2012 2:14 PM ET

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[JURIST] Myanmar released over 130 political prisoners [AI report] Friday following announcement by the Burma State Media of a presidential pardon that will free a total of 651 prisoners. Among those released were Hitay Kywe and U Gambira, leaders of a 2007 revolt, Min Ko Naing, student leader of a 1988 protest, and former prime minister Khin Nyunt. In a statement [text] through his spokesperson, UN Secretary-General Ban Ki-Moon "commends the Myanmar leadership for this important development and hopes that all those released will now be able to freely contribute to the process of national reconciliation, as well as to the strengthening of democracy and the rule of law within Myanmar."

Myanmar released 200 prisoners in October after the Myanmar National Human Rights Commission was formed [JURIST reports] in September. Although happy with this start, Ban encouraged Myanmar at the time to release the rest of its political prisoners. Myanmar has been working toward mending relations with the international community since last March, when a newly elected civilian regime took over [BBC report] after 20 years of military rule. Myanmar has still not released all of the 2,202 political prisoners [JURIST report] the UN called for it to release in 2010.




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DOJ defends Obama's recess appointments
Michael Haggerson on January 13, 2012 1:54 PM ET

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[JURIST] The US Department of Justice (DOJ) [official website] has defended [text, PDF] the use of recess appointments [CRS backgrounder, PDF] by President Barack Obama [official website]. Obama used recess appointments to install Richard Cordray [WP backgrounder] as director of the Consumer Finance Protection Bureau [official website] and appoint three other individuals to the National Labor Relations Board [official website]. The Recess Appointment Clause [Constitution, Article II, § 2 text] gives the president the "power to fill up all vacancies that may happen during the recess of the Senate." The DOJ's memo argues that although the Senate met between January 3 and 23, the sessions were not sufficient to constitute an interruption of a recess under the Recess Appointment Clause because they were only pro forma sessions that lasted less than a minute and there was no intent to conduct any business. Since the sessions were so short, the memo concludes that "the President therefore has discretion to conclude that the Senate is unavailable to perform its advise-and-consent function and to exercise his power to make recess appointments."

Obama has been criticized [Heritage Foundation report] by the right for the recess appointments as an unconstitutional extension of presidential power. Chuck Grassley (R-IA) [official website] stated that Obama's use of recess appointments "ignore[s] more than 90 years of legal precedent" [press release]. Some experts argue that recess appointments have regularly been used by presidents [JURIST op-ed] since George Washington. It is only a relatively recent practice that obstructionists have begun holding perfunctory pro forma sessions every three days while the Senate is on recess in order to block recess appointments. In 2005 then-president George W. Bush [JURIST news archive] used recess appointments to name Alice Fisher to the top post in the DOJ's criminal division, Peter Flory as an Assistant Secretary of Defense and John Bolton [JURIST reports] as US Ambassador to the UN. The US Supreme Court [official website] declined to hear [JURIST report] a case challenging President Bush's use of recess appointments.




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Poland court issues suspended sentence to communist-era interior minister
Matthew Pomy on January 13, 2012 11:25 AM ET

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[JURIST] The Warsaw Provincial Court handed down a two-year suspended sentence to former interior minister Gen. Czeslaw Kiszczak Thursday. The court found Kiszczak guilty in absentia in relation to the implementation of martial law [Polish government backgrounder] in 1981. Martial law was declared on December 13, 1981, by Gen. Wojciech Jaruzelski [personal website, in Polish], who was declared too sick to stand trial, in an attempt to squelch the Solidarity movement [official website], an opposition group. This caused thousands of people to be illegally detained as well about 100 people to be killed. Kiszczak's sentence will be suspended for five years.

This trial has been going on for more than three years [JURIST report] and involves many of the Polish leaders in 1981, including Gen. Wojciech Jaruzelski and seven other Communist-era officials. Poland's Constitutional Tribunal [official website] ruled [JURIST report] in March that the 1981 declaration of martial law violated the country's then-governing constitution [text]. The trial hit several snags between 2008 and 2011, with both the death of the presiding judge and Jaruzelski's own failing health having delayed the proceedings for several years.




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Canada: same-sex marriages of non-residents not valid
Sung Un Kim on January 13, 2012 11:14 AM ET

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[JURIST] The Canadian government has given notice that the same-sex marriages [JURIST news archive] performed in Canada between non-Canadian couples are invalid. This means that couples who came to Canada since 2004 to get married are not legally wed. The reversal is policy came to light when a lesbian couple who were wed in Toronto filed for divorce. They were told that they are not able to divorce because they were never legally married. The Canadian Department of Justice [official website] stated that such marriages are invalid and cannot be dissolved unless the couple's home country acknowledges same-sex marriage. After creating confusion based on this statement, Justice Minister Rob Nicholson gave an additional statement [news release] that he "will be looking at options to clarify the law so that such marriages performed in Canada can be undone in Canada." The government's stand has been criticized by many, including former prime minister Paul Martin [advocacy website] who said, "[w]e validated those marriages and you cannot retroactively invalidate marriages that you validated."

Although same-sex marriage is recognized across Canada, various provinces have interpreted rights in different ways. In October, a judge for the Queen's Court Bench of Alberta [official website] granted custody [JURIST report] of a child to a non-biological father who was a ex-partner of the biological father. In January, the Saskatchewan Court of Appeals [official website] ruled [JURIST report] that refusal by provincial marriage commissioners to marry same-sex couples is unconstitutional and thereby invalidated a proposed amendment to Saskatchewan's Marriage act of 1995 that would have allowed the commissioners to refuse to marry same-sex couples based on their religious beliefs.




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Israel Supreme Court upholds citizenship law
Sung Un Kim on January 13, 2012 10:27 AM ET

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[JURIST] The Israeli Supreme Court [official website] on Wednesday upheld [judgment, in Hebrew] a law that prevents Palestinians who marry Israelis from obtaining Israeli citizenship. The court upheld the Citizenship and Entry into Israel Law [text, PDF] in a 6-5 ruling, approving the original version [text, PDF] from 2003 along with its amended versions from 2005 [text, PDF] and 2007 [text, PDF, in Hebrew]. With its ruling the court again rejected the petition [text, PDF in Hebrew] filed by Adalah [advocacy website], a civil rights group in Israel, arguing that the law is unconstitutional. The law denies citizenship and right to reside in Israel to Palestinian citizens from the Occupied Palestinian Territory (OPT) [OHCHR materials] or from "enemy states" defined by the law including Syria, Lebanon, Iran and Iraq. As a result, it restricts Palestinian Arabs, citizens of Israel, from living with their spouse from these regions in Israel. The 2005 amendment allowed women over 25 and men over 35 to apply for temporary permits to live in Israel. In 2006, Adalah had filed a petition against the original version of the law which was rejected [judgment, PDF] by the same court stating that the constitutionality issue does not cover citizens of other countries, especially countries which are considered enemies to Israel.

Israeli government has been active in passing stricter laws this year. The Israeli Knesset [official website] passed [JURIST report] on Tuesday a bill that increases the penalties on illegal migrants in Israel and Israelis helping them. Penalties may include arrest and detainment in prison for indefinite time period without trial. The government also approved a bill [JURIST report] that bans the use of Nazi symbolism.




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UN rights chief urges Nigeria leaders to halt sectarian violence
Brandon Gatto on January 13, 2012 8:30 AM ET

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[JURIST] The UN High Commissioner for Human Rights Navi Pillay [official profile] on Thursday urged Nigerian leaders from all sectors of society to make a concerted effort to stop the recent violence [press release] against civilians unleashed by the Islamic militant group known as Boko Haram [BBC backgrounder]. Only a day after the group's leader promised further attacks against Nigerian citizens, Pillay called specifically on the country's religious leaders to come together and "speak with one voice" in order to prevent future violence:
One day it is a church congregation that is being targeted, the next day it is a mosque, and the day after that it is some secular target. The religious tolerance that has been a central tenet of Nigeria's Federation is being threatened, and I urge all Nigeria's leaders to avoid falling into the trap of calling for, or sanctioning, retaliation or making other provocative statements. Everybody will be the loser if Boko Haram succeeds in its aim and efforts to sow discord between Muslim and Christian, or pit Northerner against Southerner. The fact that people are already leaving some areas where they are in a minority, out of fear of attacks by the majority, shows just how dangerous this is becoming for the country as a whole.
Emphasizing the importance of human rights, Pillay further stated that Boko Haram's attacks against civilians on grounds of religion or ethnicity could be crimes against humanity, and reminded Nigerian authorities to observe human rights and transparency during the course of their investigations. Said Pillay, "There must be no impunity for any acts of violence, including those committed in retaliation for earlier attacks."

Boko Haram has been fighting to overthrow the Nigerian government and create an Islamic state, and has warned Christians in the mostly Muslim northern regions to leave the area. The group has been blamed by Nigerian authorities for hundreds of deaths in bombings and shooting over the last 18 months, and has publicly claimed responsibility for several of the attacks, including church bombings [AP report] on December 25 that killed approximately 40 people. Although Nigerian president Goodluck Jonathan [BBC profile] quickly promised to bring the militants to justice, he has since declared a state of emergency [WP report] in several locations. The Christmas day bombings were internationally condemned, including being labeled as "senseless violence" by the White House [AP report] and "acts of "blind hatred" by the Vatican [AP report]. Additionally, the UN Office of the High Commissioner for Human Rights [official website] has previously expressed concern [JURIST report] over acts of ethnic violence by Boko Haram. Specifically, the Office called the group's August bombing of a UN building in Nigeria [VO report] "cowardly." At least 18 people were killed in the attack.




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UK intelligence agents will not face trial for alleged torture involvement
Rebecca DiLeonardo on January 13, 2012 7:53 AM ET

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[JURIST] The Director of Public Prosecutions (DPP) and the Metropolitan Police Service (MPS) [official websites] in the UK said [joint statement] Thursday that there was not enough evidence to try British intelligence agents for alleged complicity in the torture of two detainees. Both cases involve individuals detained by the US with the knowledge of British agents. Neither of the detainees has alleged that British agents were directly involved in the mistreatment. The statement reported that there was not sufficient evidence to legally establish complicity to torture. Binyam Mohamed [BBC profile; JURIST news archive], a British citizen and one of the alleged victims in this case, claimed in 2009 that the British government was aware of and involved in his mistreatment [JURIST report] by US officials. The DPP and MPS stressed that their decision applies only to the two cases at hand, and other allegations of complicity by British agents in the torture of detainees will continue to be investigated:
[These cases] involve specific allegations about specific conduct. The question that has therefore been addressed in these cases is whether there is sufficient evidence to provide a realistic prospect of a criminal conviction against an identified individual in relation to these specific matters. The investigations have not examined wider allegations of ill-treatment, which, it is anticipated, will be examined by the Detainee Inquiry, chaired by Sir Peter Gibson. Nor have the investigations covered other specific allegations of ill-treatment beyond those raised in [these cases]. Should further evidence in relation to the matters raised...become available as a result of the Detainee Inquiry, the MPS would consider re-opening these operations.
Last week, the MPS decided to immediately begin the investigation of two similar cases in Libya, and will investigate other allegations "in due course."

Last August, 10 human rights groups said they would boycott the UK government inquiry [JURIST report] into allegations of torture complicity after receiving information on the protocol and transparency of the inquiry. They argued the inquiry would not comply with the European Convention on Human Rights [text, PDF]. In March former Pakistani president Pervez Musharraf [BBC profile; JURIST news archive] said in a BBC documentary that the UK gave "tacit approval" for torture [JURIST report] of terror suspects. In July 2010 UK Prime Minister David Cameron [official website] said that he will create a panel to investigate claims [JURIST report] that British government agents were complicit in the torture of terrorism suspects held overseas, after Human Rights Watch [advocacy website] urged [JURIST report] the UK government to investigate torture allegations and reaffirm its support for human rights.




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Guantanamo chief defense counsel refuses to allow review of attorney letters
Jamie Reese on January 12, 2012 12:44 PM ET

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[JURIST] Chief Defense Counsel for Guantanamo Bay [JURIST backgrounder] war crimes tribunals, Colonel J.P. Colwell on Sunday ordered [e-mail, PDF] attorneys under his command not to comply with rules [text, PDF] requiring military officials to review all legal correspondence between lawyers and the detainees accused of involvement in the 9/11 terror attacks [JURIST backgrounder]. The rules were issued [JURIST report] in December by Navy rear Adm. David Woods [official profile], commander of the prison facility. Colwell's e-mail informed all military commission defense lawyers that they are ethically obligated to refuse to follow the rules: "These orders compel you to unlawfully reveal information related to the representation of a client in violation of Rule for Professional Conduct 1.6(a)" [text] which addresses the confidentiality in a client-attorney relationship. He went on to advise all attorneys not to submit their acknowledgement of the rules, and if they had already done so, to withdraw that acknowledgement immediately. The new rules would require all correspondence to the five detainees to undergo a security review by officials from law enforcement and the Department of Defense (DOD) [official website]. The detainees, whose arraignment is anticipated to occur in 2012, include Khalid Sheikh Mohammed [BBC profile; JURIST news archive].

Lawyers for detainees at Guantanamo have previously raised concerns with practices used at the prison. Last November, lawyers complained specifically about the infringement on attorney-client privilege [JURIST report] in a letter directed to the attention of the Deputy Secretary of Defense for Detainee Affairs. The attorneys alleged that those working with the Joint Task Force Guantanamo [JTF-GTMO) seize, open, interpret, read and review attorney-client privileged communications, actions which the attorneys argued are unlawful. The five detainees have been held at Guantanamo since 2006 when they were transferred there from the custody of the US Central Intelligence Agency (CIA). Last April, Attorney General Eric Holder [official website] announced that the trials [JURIST report] for Khalid Sheikh Mohammed and the four other detainees are set to be held before a military commission. This was a change from Holder's previous position to conduct the trials in federal civilian court [JURIST report]. Wednesday marked the tenth anniversary of operation at Guantanamo Bay [JURIST report].




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Thailand independent commission calls for overhaul of royal insult law
Katherine Getty on January 12, 2012 12:20 PM ET

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[JURIST] The Truth and Reconciliation Commission of Thailand (TRCT) [backgrounder] has recommended that Prime Minister Yingluck Shinawatra [BBC profile] amend the law that punishes anyone who insults the royal family with up to 15 years in prison [Thai Penal Code text] for each separate crime. The Commission was set up by the Thai cabinet in 2010 to investigate the violence in the country. The TRCT asked that a senior member of the government be appointed to authorize criminal proceedings, instead of any member of the public, as is the case now. Despite attacks on the law within the country, as well as abroad from the US, EU and UN, Thailand's political parties have indicated that they will not reform the law. Opponents of the law claim that it has become a political tool used to limit free speech. In a letter to the prime minister [AFP report], the Commission requested that the punishments fit with public sentiment and be less harsh. The law is even drawing criticism from some with royal blood who, in a letter, requested the prime minister change the law. However, they did not specify how they wish the law to be changed.

In early December an American was sentenced to two-and-a-half years in prison [JURIST report] after he translated part of a banned biography and put the translation on the Internet. UN Special Rapporteur on freedom of expression Frank La Rue [official website] condemned the law [JURIST report] in October 2011 saying that it was too vague on what constituted an insult. In 2009, Amnesty International (AI) [advocacy website] called for a public trial [JURIST report] for a Thai political activist accused of violating the law, when the judge ordered the trial closed for national security reasons. Darunee Charnchoensilpakul [advocacy website] was convicted [BBC report] at the trial and sentenced to 15 years in prison.




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Supreme Court hears arguments on state immunity, disability compensation
Maureen Cosgrove on January 12, 2012 11:19 AM ET

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[JURIST] The US Supreme Court [official website] heard oral arguments [day call, PDF] in two cases Wednesday. In Coleman v. Maryland Court of Appeals [transcript, PDF; JURIST report] the court will determine whether Congress constitutionally abrogated states' Eleventh Amendment [text] immunity when it passed the self-care leave provision of the Family and Medical Leave Act (FMLA) [DOL backgrounder]. Petitioner Daniel Coleman was terminated from his job at the Maryland Court of Appeals and filed suit under Title VII and FMLA seeking money damages. The US Court of Appeals for the Fourth Circuit affirmed [opinion, PDF] a lower court ruling that dismissed petitioner's FMLA clams as barred by Eleventh Amendment immunity. Counsel for the petitioner argued that Congress passed the self-care leave provision in an effort to protect women from employment discrimination by giving all employees, men included, equal right to leave. The state asserted that the self-care leave provision's purposes are not sufficiently in line with the Equal Protection Clause to overcome states' sovereign immunity.

In Roberts v. Sea-Land Services [transcript, PDF; JURIST report] the court will clarify when the period for compensation is under the Longshore and Harbor Workers' Compensation Act [text], which goes into effect after a worker is disabled on the job. The calculation for compensation is based on several factors, including the national average wage. Dana Roberts was disabled for a period between 2002 and 2005, but her claim was not adjudicated until 2007. Roberts argues that the national average wage when her claim was first adjudicated and decided in 2007 should be used, as opposed to the national average wage from 2002 when she was injured. The US Court of Appeals for the Ninth Circuit ruled [opinion, PDF] that Roberts misinterpreted the phrase "those newly awarded compensation during such period" and held that her compensation should be calculated based on the 2002 national average. The oral arguments focus on the ambiguity of the word "award," which counsel for the petitioner maintains is the compensation resulting from an administrative compensation order. The state argued that it would not make sense to compensate an employee who has not received an administrative order differently that one who has.




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Senegal rejects Belgium request to extradite Chad ex-president
Jennie Ryan on January 12, 2012 11:06 AM ET

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[JURIST] A court in Senegal on Thursday rejected a Belgian court's request to extradite Hissene Habre [BBC profile; JURIST news archive], the former president of Chad, on accusations that he killed and tortured opponents during his regime. Habre served as president of Chad from 1982 to 1990. Belgium alleges that, during that time, Habre was involved in the murder or torture of more than 40,000 political opponents. When he was ousted in 1990, he sought refuge in Senegal where he has resided ever since. Senegal placed Habre under arrest in 2005 after he was charged by Belgium. Senegalese President Abdoulaye Wade said the rejection of the extradition request was based on a procedural error [BBC report]. The court did not receive original copies of the Belgian arrest warrant and other necessary documents, instead receiving photocopies. Wade said he expects the request for extradition to be granted once these procedural issues are resolved.

Senegal has been under pressure to send Habre to a country where he will face trial for his alleged war crimes committed during his rule of Chad. In July of last year, Senegal reversed [JURIST report] its decision to send the former dictator back to Chad after UN High Commissioner for Human Rights Navi Pillay [official profile] warned he could be tortured. The decision came after Pillay issued a plea [JURIST report] not to return Habre to Chad, which has already sentenced him to death in absentia and where she fears he will be tortured. The plea from Pillay came just days after Senegal announced it was deporting Habre to Chad [JURIST report] to face charges for war crimes. Belgium has long sought Habre's extradition under a universal jurisdiction law that allows Belgian courts to hear cases over violations of international law. In 2009, the International Court of Justice (ICJ) [official website] denied [JURIST report] Belgium's request to compel Habre's extradition.




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New Jersey legislature passes one-year fracking ban
Max Slater on January 12, 2012 8:28 AM ET

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[JURIST] The New Jersey Legislature [official website] passed an amendment to a bill [A567 text, PDF] on Monday that establishes a one-year ban on a natural gas extraction method known as hydraulic fracturing, or fracking [JURIST news archive]. Legislators re-introduced the bill this year after New Jersey Governor Chris Christie (R) [official website] conditionally vetoed legislation [press release] last June that would have permanently banned fracking in New Jersey [JURIST report]. When Christie vetoed the bill, he instituted a one-year moratorium on fracking in order to study its potential consequences. The bill passed on Monday asserts that public safety concerns stemming from uncertainty over the environmental consequences of fracking necessitate a ban on the practice:
[T]he drilling technique of hydraulic fracturing for natural gas exploration and production has been found to use a variety of contaminating chemicals and materials that can suddenly and in an uncontrolled manner be introduced into the surface waters and ground water of the State; that the companies engaging in the use of this drilling technique have been less than forthcoming in revealing the "cocktail" of chemicals and their volume that can be introduced into these waters ... The Legislature therefore determines it is prudent and in the best interest of the people of the State of New Jersey to prohibit hydraulic fracturing in the State for the purpose of natural gas exploration or production.
The bill now goes to Christie, who can either sign or veto it.

Fracking has been a contentious issue recently, both in the US and abroad. Fracking is a process in which water, sand and chemicals are pumped into the ground to create fractures in rocks which allows trapped gas and oil to come to surface. Proponents trumpet the technique for providing people with abundant energy as well as for creating jobs in a tough economy. Opponents of fracking point out its negative consequences on the environment and public health. In October the Environmental Protection Agency (EPA) [official website] announced plans to develop standards [JURIST report] for wastewater discharge from fracking. In July JURIST contributor Joseph Schaeffer wrote extensively [JURIST op-ed] about communities in Appalachia preemptively passing laws to curb fracking. In June New York Attorney General Eric Schneiderman [official profile] sued the US government [JURIST report] for its alleged failure to study the risks of fracking. In May France's lower house approved a nationwide ban on fracking [JURIST report].




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Bangladesh opposition leader charged with crimes against humanity
Rebecca DiLeonardo on January 12, 2012 7:30 AM ET

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[JURIST] Prosecutors for the International Crimes Tribunal in Bangladesh (ICTB) [Facebook page] arrested the former leader of the Jamaat-e-Islami Party (JI) [party website; GlobalSecurity backgrounder] on Wednesday, alleging crimes against humanity committed during the Bangladesh Liberation War of 1971 [Bangladesh News backgrounder]. Ghulam Azam, 89, was taken into custody [bdnews24.com report] Wednesday after his preemptive request for bail, based on health and age, was denied by the court on Tuesday. A hearing has been scheduled for February 15 to formally establish charges against him. Azam, who opposed the independence of Bangladesh and allegedly aided the Pakistani Army during the war, maintains that the charges are politically motivated [BBC report]. He functioned as chief of JI in Bangladesh until 2000.

In November the ICTB began its first trial [JURIST report] for crimes against humanity committed during the Bangladesh Liberation War. The defendant is Delwar Hossain Sayedee, a former member of Parliament in the National Assembly of Bangladesh [official website, in Bengali] and one of the former leaders of JI. Earlier that month ICTB prosecutors filed an application [JURIST report] for formal charges against Salauddin Quader Chowdhury, a former leader of the Bangladesh Nationalist Party [party website] who is also accused of crimes against humanity during the Liberation War. In May Human Rights Watch [advocacy website] sent a letter to the Bangladesh government praising its efforts through the ICTB to prosecute war crimes, 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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26 states say medicaid expansion in health care law is unconstitutional
Sarah Posner on January 11, 2012 2:10 PM ET

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[JURIST] Twenty-six states submitted a brief [text, PDF] to the US Supreme Court [official website] Tuesday challenging the constitutionality of the expansion of Medicaid for the poor and disabled in the Patient Protection and Affordable Care Act (PPACA) [HR 3590; JURIST backgrounder]. The brief argues that PPACA's expansion of Medicaid is so integral to the law itself that PPACA in its entirety should be nullified. The government predicts that the enrollment in Medicaid will increase by 16 million people by the end of 2020. The states allege that PPACA's new requirements eliminate the voluntary participation of states in the Medicaid program by taking away federal funding for non-participation. Therefore, states have no other alternative but to continue participating in Medicaid. The brief states:
The scope of the federal government's power is much debated, but the fact that its powers are limited and enumerated is common ground to all. A judicial doctrine that implicitly or explicitly allows Congress to use the spending power without meaningful judicial supervision is simply not compatible with that basic premise of our system.
The government's brief on the issue of Medicaid's expansion is due by February 10.

On Saturday, the federal government filed a brief [JURIST report] before the US Supreme Court arguing that the minimum coverage provision of the PPACA, which requires almost every US citizen to obtain health insurance by 2014 or face a tax penalty, is constitutional. The government is attempting to keep the focus of the argument on health care reform as a whole [SCOTUSblog report], rather than on the specific minimum coverage provision. The same group of 26 states filed a supporting brief arguing that the minimum coverage provision cannot be severed from the health care reform act without the entire system collapsing. The court granted certiorari to rule on health care reform law [JURIST report] in three separate cases, reserving five-and-half-hours for oral argument on the issue.




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Supreme Court upholds ADA ministerial exception
Maureen Cosgrove on January 11, 2012 2:08 PM ET

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[JURIST] The US Supreme Court [official website] ruled unanimously [opinion, PDF] Wednesday in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC [SCOTUSblog backgrounder] that the Establishment and Free Exercise Clauses [Cornell LII backgrounders] of the First Amendment bar wrongful termination lawsuits when the employer is a religious group and the employee is one of the organization's ministers. The Americans with Disabilities Act (ADA) [text] contains a "ministerial exception" that allows religious organizations to give "preference in employment to individuals of a particular religion" and to "require that all applicants and employees conform to the religious tenets of such organization." The Equal Employment Opportunity Commission (EEOC) [official website] and Cheryl Perich brought a claim against the Hosanna-Tabor Evangelical Lutheran Church and School alleging that the school had unlawfully terminated Perich in violation of the ADA because she was diagnosed with narcolepsy. The US Court of Appeals for the Sixth Circuit held [opinion, PDF] that the school violated the ADA and that the ministerial exception did not apply. In reversing the appeals court, Chief Justice John Roberts articulated the purpose of the ministerial exception:
The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group's right to shape its own faith and mission through its appointments.
The court ultimately concluded that the ministerial exception applied in Perich's case given the circumstances of her employment.

Justice Clarence Thomas wrote separately to emphasize the deference courts must give to a "religious organization's good-faith understanding of who qualifies as its minister." The other justices implemented a fact-intensive analysis to determine whether the employee was a "minister" and therefore subject to the ministerial exception.




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Guantanamo Bay detention facility marks tenth anniversary of operation
Dan Taglioli on January 11, 2012 11:40 AM ET

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[JURIST] Wednesday marked the tenth annivesary of the detention center at Guantanamo Bay [JURIST backgrounder]. On January 11, 2002, 20 detainees arrived at Guantanamo Bay, Cuba, imprisoned as the first "enemy combatants" in the War on Terror declared by the US after 9/11 [JURIST backgrounder]. The 20 men were the first of nearly 800 prisoners to pass through the US military detention center over 10 years, and the prison has evolved into a multimillion dollar facility since its inception. Edwin Meese III, attorney general under Ronald Reagan, calls [CNN op-ed] the detention and interrogation facility a "world-class, state-of-the-art" necessity that "has served and continues to serve an important role in the war against terrorists since it opened 10 years ago." Meese says Guantanamo has "played an invaluable role in the war against terrorists by keeping them off the battlefield and allowing for lawful interrogations" and it should remain open "until a safe, reasonable alternative facility" is fashioned. Conversely, many see Guantanamo's continued operation as an affront to the principles under which the US was founded, and advocacy groups around the world have called for the center's closure. Amnesty International (AI) has prepared a tenth anniversary report [text, PDF] condemning Guantanamo, stating its practices "continue to inflict serious damage on global respect for human rights." Human Rights Watch (HRW) writes [press release] that it opposes the prolonged indefinite detention without trial of terrorism suspects at Guantanamo Bay and elsewhere" and sent a letter to President Obama [text] urging him "to reaffirm his stated commitment to closing Guantanamo by prosecuting detainees in federal court and repatriating and resettling those who will not be prosecuted." The ACLU states [press release] unequivocally, "Guantanamo has been a catastrophic failure on every front. It is long past time for this shameful episode in American history to be brought to a close." UK Prime Minister David Cameron marked the anniversary in Parliament by stating that Britain is working "very hard" with the US to help close Guantanamo, and a UK columnist writes [Guardian report] that Guantanamo's continued operation after 10 years is "mocking America's claim to moral supremacy and acting as a powerful recruiting tool for the country's enemies." Moazzam Begg, a 43-year-old British Muslim and former Guantanamo inmate, claims he was wrongly detained, abused and tortured in US custody. Begg observed the tenth anniversary by predicting that Guantanamo will never close [CNN report], and to hope otherwise is simply fantasy.

Currently 171 detainees [NYT docket] are held at Guantanamo. The Obama administration originally wanted suspected terrorists to be tried before a federal civilian court, but changed its position after Congress imposed a series of restrictions [JURIST reports] barring the transfer of Guantanamo detainees to the US, despite repeated appeals from rights groups to utilize civilian courts over military commissions. Last March, UN Special Rapporteur on human rights and counterterrorism Martin Scheinin [official website] called on the Obama administration to hold civilian trials [JURIST report] for Khalid Sheikh Mohammed and other suspected terrorists saying that the military commissions system is fatally flawed and cannot be reformed. Earlier that month, the ACLU released a full-page advertisement in the New York Times urging President Barack Obama [JURIST report] to uphold his pledge to try 9/11 suspects in civilian criminal court. That release came just days after White House advisers announced they were considering recommending [JURIST report] that Mohammed be tried in a military court rather than through the civilian criminal justice system. In an interview in 2010, Holder stated that the main goal of the administration is to hold the people responsible [JURIST report] for 9/11 accountable in the most effective way possible. Holder reiterated his support for holding the trials in civilian courts [JURIST report], saying that the criminal justice system has been proven an effective location for terrorism trials and that excluding civilian courts as a possible tool in fighting terrorism would ultimately weaken the nation's security. Holder announced in November 2009 that Mohammed would be tried in a civilian court [JURIST report] in Manhattan, drawing intense criticism and leading the Obama administration to reconsider the decision.




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Federal judge halts South Carolina immigration lawsuit
Jennie Ryan on January 11, 2012 11:29 AM ET

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[JURIST] A judge for the US District Court for the District of South Carolina [official website] on Monday placed a hold on a lawsuit over the state's new immigration law [SB 20] pending the outcome of a similar case to be heard by the US Supreme Court [official website]. The South Carolina legislation requires police officers to check a suspect's immigration status during a lawful stop, seizure, detention or arrest if they believe the person may be in the country illegally and requires businesses to participate in the E-Verify [official website] system. An Arizona judge struck down similar provisions in that state's immigration law [SB 1070 materials] and issued an injunction, upheld [JURIST report] by the US Court of Appeals for the Ninth Circuit [official website], barring provisions of the law from taking effect. The Supreme Court agreed [JURIST report] in December to rule Arizona's controversial immigration law granting certiorari [JURIST report] in Arizona v. United States [docket] to determine if Arizona's law is preempted by federal law.

Similar immigration laws are being challenged throughout the US. In December a federal judge blocked [JURIST report] portions of the South Carolina law. Judge Richard Gergel blocked the provision that requires police to check immigration status, finding, "[t]his state-mandated scrutiny is without consideration of federal enforcement priorities and unquestionably vastly expands the persons targeted for immigration enforcement action. He also blocked the provision that outlaws harboring or transporting an illegal immigrant, finding a likelihood of irreparable harm. The law was set to take effect January 1. Also in December, Alabama and Georgia filed motions in the US Court of Appeals for the Eleventh Circuit [official website] seeking to stay proceedings [JURIST report] on challenges to their immigration laws pending the Supreme Court ruling in Arizona v. United States. A challenge is also pending to an immigration law in Utah, and an Indiana law has been blocked [JURIST reports] by a federal judge.




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Supreme Court rules on Outer Continental Shelf Lands Act
Jaclyn Belczyk on January 11, 2012 11:26 AM ET

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[JURIST] The US Supreme Court [official website] ruled unanimously [opinion, PDF] Wednesday in Pacific Operators Offshore LLP v. Valladolid [SCOTUSblog backgrounder] that the Outer Continental Shelf Lands Act (OCSLA) [43 USC §§ 1331-1356 text] extends coverage to an employee who can establish a substantial nexus between his injury and his employer's extractive operations on the outer continental shelf (OCS). The OCSLA governs those who work on oil drilling platforms and other fixed structures beyond state maritime boundaries, and workers are eligible for compensation for "any injury occurring as the result of operations conducted on the [OCS]." Juan Valladolid worked for Pacific Operations Offshore, stationed primarily on an offshore drilling platform, but was killed on the grounds of Pacific Operations' onshore oil processing facility when he was crushed by a forklift. The US Court of Appeals for the Ninth Circuit ruled [opinion, PDF] in favor of Valladolid's estate. In an opinion by Justice Clarence Thomas, the court affirmed:
Although the Ninth Circuit’s test may not be the easiest to administer, it best reflects the text of §1333(b), which establishes neither a situs-of-injury nor a "but for" test. We are confident that ALJs and courts will be able to determine whether an injured employee has established a significant causal link between the injury he suffered and his employer's on-OCS extractive operations. Although we expect that employees injured while performing tasks on the OCS will regularly satisfy the test, whether an employee injured while performing an off-OCS task qualifies—like Valladolid, who died while tasked with onshore scrap metal consolidation—is a question that will depend on the individual circumstances of each case.
Justice Scalia authored a concurrence, which was joined by Justice Samuel Alito.

Wednesday's ruling settles a split among the circuit courts. The court heard arguments [JURIST report] in the case in October. Pacific Operators Offshore argued that the OCSLA has no remedy for an injury that occurred on dry land, but rather Valladolid should have sought relief through state workers compensation law. The federal government argued that the OCSLA covers injuries or death on dry land explicitly, but not under the "nexus" reasoning the Ninth Circuit utilized. Valladolid's attorney argued that, pursuant to similar treatment in the Jones Act [text], his client's estate should be compensated for his death that occurred on land.




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France report clears Rwanda president of assassination charge
Jennie Ryan on January 11, 2012 10:53 AM ET

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[JURIST] A report compiled by a French court appeared Tuesday to clear Rwandan President Paul Kagame [official website; BBC profile] of accusations that he orchestrated the 1994 assassination of the country's then-leader Juvenal Habyarimana [NYT profile]. The accusations against Kagame stem from the April 6, 1994, plane crash that killed Habyarimana when his plane was shot down by a missile. The French team investigating the incident visited the site of the crash in order to determine the trajectory of the missile. They concluded that the missile came from an area held by the Rwandan army, a unit of elite presidential troops, making it unlikely that Kagame could have been behind the attack [BBC report]. The death of Habyarimana is one of the incidents which sparked the 1994 Rwandan genocide [JURIST news archive; HRW backgrounder].

Rwanda has been continually scrutinized in relation to the 1994 genocide. In a report released in June of last year, Amnesty International (AI) [advocacy website] urged Rwanda to review laws it claims have a "genocide ideology" [JURIST report] that are being used to silence critics and dissenters. AI claims that Rwanda has broadly drafted hate speech laws passed since the 1994 genocide that are being used to criminalize legitimate criticism and expression that does not rise to the level of hate speech. In April 2010, Rwandan authorities arrested [JURIST report] opposition presidential candidate Victoire Ingabire Umuhoza [campaign website], accusing her of denying the 1994 genocide. The arrests come at a time when Kagame has received criticism from Human Rights Watch (HRW) [advocacy website] for his treatment of opposition parties. Last August, Peter Erlinder, former defense counsel at the International Criminal Tribunal for Rwanda, argued [JURIST op-ed] that even though the White House has become more openly critical of Rwandan President Paul Kagame's regime, the US and international community at large must take a much closer look at those in power before true reconciliation will come to Rwanda.




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Supreme Court upholds eyewitness identification
Jaclyn Belczyk on January 11, 2012 10:26 AM ET

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[JURIST] The US Supreme Court [official website] ruled 8-1 [opinion, PDF] Wednesday in Perry v. New Hampshire [SCOTUSblog backgrounder] that the Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement. The petitioner was convicted based in part on an eyewitness identification made while he was in handcuffs, albeit not orchestrated by the police. The New Hampshire Supreme Court upheld his conviction, and the Supreme Court affirmed in an opinion authored by Justice Ruth Bader Ginsburg:
Given the safeguards generally applicable in criminal trials, protections availed of by the defense in Perry's case, we hold that the introduction of Blandon's eyewitness testimony, without a preliminary judicial assessment of its reliability, did not render Perry’s trial fundamentally unfair.
Justice Sonia Sotomayor dissented:
Our cases thus establish a clear rule: The admission at trial of out-of-court eyewitness identifications derived from impermissibly suggestive circumstances that pose a very substantial likelihood of misidentification violates due process. The Court today announces that that rule does not even "com[e] into play" unless the suggestive circumstances are improperly "police-arranged."
Justice Clarence Thomas filed a concurring opinion.

The court heard arguments [JURIST report] in the case in November. The petitioner argued that it was fundamentally unfair to allow potentially erroneous eyewitness identifications into the trial simply because they were not orchestrated by police. New Hampshire, supported by the US Solicitor General as amicus curiae, argued that the rules of evidence provided sufficient safeguards and that cases where the erroneous identifications were disallowed were aimed at deterring police misconduct, which no one has alleged in the case at hand. In addition, the government urged it is the primary role of the jury to assess the reliability of evidence and handing that determination to the judge would be a fundamental shift in our trial practice. The court questioned whether the role of these due process protections was strictly deterrence or whether it also included prevention of injustice, as urged by petitioner.




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Federal appeals court allows enforcement of Texas abortion sonogram law
Katherine Getty on January 11, 2012 10:21 AM ET

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[JURIST] The US Court of Appeals for the Fifth Circuit [official website] on Tuesday lifted an injunction [opinion, PDF] on a Texas law [text, PDF] that requires women to have a sonogram before undergoing an abortion [JURIST news archive], allowing the law to be enforced. In addition to the sonogram, the new law also dictates that the woman must listen to a detailed description of the development of the fetus. Any doctor who does not comply with the standards could lose his or her license to practice medicine. The suit, brought by a class of doctors represented by the Center for Reproductive Rights (CRR) [advocacy website], claimed the new law violates the First Amendment by compelling speech. The appeals court determined that plaintiffs were unlikely to succeed on the merits, citing the Supreme Court's decision in Planned Parenthood v. Casey [text] which found that providing truthful, non-misleading facts did not pose an undue burden on women:
The Court's decision in Casey accented the state's interest in potential life, holding that its earlier decisions following Roe failed to give this interest force at all stages of a pregnancy and that in service of this interest the state may insist that a woman be made aware of the development of the fetus at her stage of pregnancy. Significantly, the Court held that the fact that such truthful, accurate information may cause a woman to choose not to abort her pregnancy only reinforces its relevance to an informed decision. Insisting that a doctor give this information in his traditional role of securing informed consent is permissible. Texas has done just this and affords three exceptions to its required delivery of information about the stage of fetal growth where in its judgment the information had less relevance, a legislative judgment that is at least rational.
Planned Parenthood [advocacy website] issued a statement after the ruling claiming that the law is demeaning and intrusive [press release] and would intimidate women. The CRR has not decided whether to challenge the law in front of the full Fifth Circuit, but has said that it will continue to pursue a challenge [press release] to the law.

Texas Governor Rick Perry [official website] signed the measure into law in May, but it was blocked in August by a federal judge after a challenge [JURIST reports] from the CRR. Both Oklahoma and North Carolina have enacted similar laws. A federal judge granted a preliminary injunction [JURIST report] against the North Carolina in October. With the sonogram portion temporarily removed, the rest of the North Carolina law went into force. Oklahoma's law has also been blocked [JURIST report].




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Supreme Court hears arguments on FCC indecency policy
Julia Zebley on January 11, 2012 8:11 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 FCC v. Fox Television Stations, Inc. [transcript, PDF; JURIST report], the court heard arguments on whether the Federal Communications Commission (FCC) [official website] current indecency enforcement regime violates the First or Fifth Amendments [text] to the US Constitution by being too vague to be enforced properly. The case hinges on indecency issues raised in two separate broadcasts, one in which a deliberate nudity scene appeared in a television crime show during prime-time hours, and the other involving celebrities using expletives during live broadcasting events. The FCC's current policy reserves it the right to revoke a broadcaster's license renewal if something "patently offensive" occurs. Broadcasters have argued that the definition of patently offensive, which has been created through an amalgamation of past sanctions the FCC has doled out, is unclear. The Solicitor General, appealing the Second Circuit's ruling that the FCC's policy is unconstitutionally vague [JURIST report], argued that the policy is clear and provides constructive notice and that circumstances have not changed enough to modify the underlying principles of FCC v. Pacifica [text]. Attorneys for Fox argued that the current policy is unduly vague and that there are enough outside protections (such as a V-chip) to prevent indecency from reaching those who do not want to hear it. He also contended that the FCC is clearly failing in its duties to enforce adequately:
And as we sit here today, literally facing thousands and thousands of ginned-up computer-generated complaints that are holding up literally hundreds of TV license renewals, so that the whole system has come to a screeching halt because of the difficulty of trying to resolve these issues. So to say that the system is working well seems to me, at least from the broadcasters' perspective, is to suggest that's just not true.
Fox had support from several other radio and television networks, which also argued against the FCC's policy. Justice Sonia Sotomayor recused herself from this case.

In Knox v. Service Employees International Union, Local 1000 (SEIU) [transcript, PDF; JURIST report], the court heard arguments on whether the First and Fourteenth Amendments [text] allow a state to compel non-union members to pay into union funds that are being used for political advocacy that they disagree with, thus making support of that political stance a condition for employment. There is also a question as to whether notice that this is a condition of employment makes the condition sufficient. However, between the time certiorari was granted and oral arguments, SEIU had decided that they were not going to defend the case further and would argue mootness, due to the original officers of the union no longer holding those positions and that the union has created a new procedure to address the issue at hand. The plaintiffs argued that the court should still rule on the financial award at stake.




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Supreme Court overturns conviction due to DA withholding evidence
Julia Zebley on January 11, 2012 7:31 AM ET

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[JURIST] The US Supreme Court [official website] ruled 8-1 [opinion, PDF] Tuesday in Smith v. Cain [JURIST report] to overturn the conviction of Juan Smith due to the New Orleans District Attorney's office [official website] withholding material evidence from the defense. Smith was convicted of murder largely on the testimony of one eyewitness. However, the District Attorney's office had statements from the witness that indicated he had not properly identified Smith, which was not turned over to Smith and his defense during the proceedings. Chief Justice John Roberts explained that this was a clear violation of Brady v. Maryland [text] as the case rested solely on the eyewitness' credibility:
We have observed that evidence impeaching an eyewitness may not be material if the State's testimony was the only evidence linking Smith to the crime. And Boatner's undisclosed statements directly contradict his testimony: Boatner told the jury that he had "[n]o doubt" that Smith was the gunman he stood "face to face" with on the night of the crime, but [the police detective's] notes show Boatner saying that he "could not ID anyone because [he] couldn't see faces" and "would not know them if [he] saw them." Boatner's undisclosed statements were plainly material.
Other allegations of prosecutorial misconduct in this case were not ruled on, as this instance of withholding evidence was sufficient to overturn the conviction. In dissent, Justice Clarence Thomas argued that the state had adequately convicted Smith without the eyewitness testimony.

Smith v. Cain is only the latest of several allegations of prosecutorial misconduct [SCOTUSblog backgrounder] out of the New Orleans District Attorney's office. This scrutiny has been ongoing for 15 years, beginning with Kyles v. Whitley [text], as the New Orleans District Attorney's office continues a policy of withholding exculpatory evidence from the defense. Last term, a divided court ruled in Connick v. Thompson [JURIST report] that District Attorney Harry Connick Sr.'s failure to train subordinates in properly handling evidence could not result in a civil suit. As in Smith v. Cain, Thompson was convicted due to Connick's office not releasing exculpatory evidence to the defense.




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Supreme Court upholds arbitration agreement
Jaclyn Belczyk on January 10, 2012 2:13 PM ET

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[JURIST] The US Supreme Court [official website] ruled 8-1 [opinion, PDF] Tuesday in CompuCredit Corp. v. Greenwood [SCOTUSblog backgrounder] that, because the Credit Repair Organizations Act (CROA) is silent on whether claims can proceed in an arbitrable forum, the Federal Arbitration Act (FAA) [text] requires the arbitration agreement to be enforced according to its terms. The case arose from a dispute between consumers and companies that issue low-rate credit cards to people with bad credit. The consumers filed a lawsuit over credit card fees, and the US Court of Appeals for the Ninth Circuit ruled that they had a right to sue in federal court [opinion, PDF] rather than face arbitration. In an opinion by Justice Antonin Scalia, the Supreme Court reversed the Ninth Circuit:
The flaw in [respondents'] argument is its premise: that the disclosure provision provides consumers with a right to bring an action in a court of law. It does not. Rather, it imposes an obligation on credit repair organizations to supply consumers with a specific statement set forth (in quotation marks) in the statute. The only consumer right it creates is the right to receive the statement, which is meant to describe the consumer protections that the law elsewhere provides.
Justice Sonia Sotomayor filed an opinion concurring in the judgment, which Justice Elena Kagan joined. Justice Ruth Bader Ginsburg filed a dissenting opinion.

The court heard oral arguments [JURIST report] in the case in October. The attorney for CompuCredit argued that strong federal policy in favor of arbitration overrides any differing laws that discourage waivers of rights to sue. Respondents argued that the CROA explicitly bans any suggestion of waiving the right to sue and that credit card companies should be fined for even asking applicants to sign an arbitration waiver.




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Rights group seeks release of Guantanamo interrogation videos
Max Slater on January 10, 2012 1:43 PM ET

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[JURIST] The Center for Constitutional Rights (CCR) [advocacy website] filed a lawsuit [complaint, PDF] on Monday seeking the release of videotapes of the interrogation of an inmate held at the Guantanamo Bay prison [JURIST news archive]. The CCR filed the lawsuit in the US District Court for the Southern District of New York [official website] on behalf of Mohammed al-Qahtani [NYT profile; JURIST news archive], a Saudi citizen believed to be the twentieth hijacker in the 9/11 attacks [JURIST news archive]. The CCR claims that the Freedom of Information Act (FOIA) [text, PDF] compels the US government to publicly release the videotapes. The complaint argues that releasing the videotapes would serve the public interest "by providing the American [people] with unique documentation of the systematic abuses at Guantanamo." The comlaint also graphically describes the brutality al-Qahtani allegedly experienced in Guantanamo: "Mr. al-Qahtani's treatment consisted of daily 20-hour interrogation periods, along with severe sleep deprivation and isolation. United States military personnel flooded Mr. al-Qahtani's cell with light and loud music and/or sound during his brief periods of rest. He was isolated from other prisoners and deprived of sensory stimulation under a harsh regime of solitary confinement." A spokesperson for federal government attorneys in New York declared that the government had no comment on the lawsuit [AP report].

Al-Qahtani has been at the center of many controversies pertaining to the treatment of prisoners held at Guantanamo Bay. In April the US military released hundreds of classified documents to select news organizations [NYT report], including one which revealed that al-Qahtani was leashed like a dog, sexually humiliated and forced to urinate on himself. In January 2009 Susan Crawford, then-convening authority of military commissions, admitted [JURIST report] that torture tactics were used against al-Qahtani. Crawford refused to allow prosecution of al-Qahtani because he was tortured. In November 2008 US military prosecutors filed a new set of charges against al-Qahtani over his alleged role in the 9/11 attacks, after dropping charges in May 2008 [JURIST reports] following suspicions that al-Qahtani's statements were coerced by US torture [JURIST report]. US military personnel captured al-Qahtani in Afghanistan in December 2001 and transferred him to Guantanamo, where he has been held ever since.




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Turkish court accepts indictment against former president
Sung Un Kim on January 10, 2012 1:42 PM ET

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[JURIST] The Ankara 12th High Criminal Court accepted an indictment on Tuesday charging former Turkish president Kenan Evren [official website] with crimes against the state in relation to the 1980 coup. The ex-president was the head of the 1980 military coup that overthrew the existing government and ended the violence between the left and right-wing groups. The former air force chief Tahsin Sahinkaya was also included in the indictment. They are the only two survivors of the five men who planned the coup. Evren was first questioned in June when Article 15 of the Constitution [text], which has given immunity to the leaders of the coup, was amended. The prosecution is seeking life imprisonment. The trial date has not yet been set.

The acceptance of the indictment came after the prosecution charged the two men [JURIST report] last week. Turkey has been facing numerous coup plots during the past years and continues to bring charges against military officials and individuals for such crimes against the government. In November, 13 Turkish journalists were accused of plotting [JURIST report] to overthrow the government. In August, the court also issued arrest warrants [JURIST report] for seven generals and admirals in relation with allegations that they created an anti-government website in 2009. After detainment for questioning three high ranking military officials in connection with their alleged coup plot, the Turkish court released [JURIST report] them but they remained under investigation.




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Supreme Court prohibits federal inmates from seeking damages from private prison employees
Hillary Stemple on January 10, 2012 1:34 PM ET

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[JURIST] The US Supreme Court [official website] ruled [opinion, PDF] Tuesday in Minneci v. Pollard [SCOTUSblog backgrounder; JURIST report] that where state tort law authorizes adequate remedies for individuals harmed by private employees working at a federal facility, and where the private employees have no employment or contractual relationship with the government, no remedy under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics [opinion text] can be applied. Respondent Richard Lee Pollard filed a complaint in 2002 against employees of the Wackenhut Corrections Corporation, which operated the federal prison facility where he was a prisoner. Pollard alleged that employees violated his Eight Amendment [text] rights by denying him adequate medical care which resulted in injury and "cruel and unusual punishment." The US Court of Appeals for the Ninth Circuit reversed [opinion, PDF] a federal district court judge and held that the Eight Amendment provided Pollard with a Bivens action against the private prison employees. In the majority opinion authored by Justice Stephen Breyer, the court held that in determining whether a Bivens remedy can be applied to alleged Eight Amendment violations, "the question is whether, in general, state tort law remedies provide roughly similar incentives for potential defendants to comply with the Eighth Amendment while also providing roughly similar compensation to victims of violations." The court concluded that while state law tort remedies may be more limited than some Bivens remedies, prisoners alleging a violation of their Eight Amendment rights by private employees at federal facilities would have adequate remedies under state tort law, and therefore no Bivens remedy can apply. Justice Antonin Scalia authored a concurring opinion in the case in which he was joined by Justice Clarence Thomas. Justice Ruth Bader Ginsburg was the lone dissenter in the case.

The court heard oral arguments [JURIST report] in the case in November. During oral arguments the court appeared to be strongly convinced by the government-petitioner's argument that Bivens should continue to be used as a last resort and not expanded when state law provides adequate redress. Respondents argued that Bivens casts a wide net and allows any specific civil action that is not delineated by that state's law, whereas several justices argued with the attorney that almost any action could be addressed by state tort law. Respondent also suggested that as his client was a federal prisoner prosecuted by the federal government, with only access to federal law in the prison library, he should be allowed to address his claims in federal court.




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Tenth Circuit upholds ruling blocking Oklahoma Islamic law ban
Brandon Gatto on January 10, 2012 1:15 PM ET

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[JURIST] The US Court of Appeals for the Tenth Circuit [official website] on Tuesday unanimously upheld [opinion, PDF] a ruling blocking the implementation of an Oklahoma constitutional amendment [text, PDF] that would have prohibited state courts from considering Islamic and international law in deciding cases. Approved by approximately 70 percent [election results] of Oklahoma voters, but challenged by the American Civil Liberties Union (ACLU) and the Council on American-Islamic Relations (CAIR) [advocacy websites], State Question 755, also called the "Save Our State Amendment," was classified by the court as singling out Islam for unfavorable treatment in state courts. The court ruled that the provision likes violates the Establishment Clause of the First Amendment [text]:
Federal courts should be wary of interfering with the voting process, but we agree with the district court and the Sixth Circuit that "'it is always in the public interest to prevent the violation of a party’s constitutional rights.'" ... "While the public has an interest in the will of the voters being carried out ... the public has a more profound and long-term interest in upholding an individual's constitutional rights." ... We therefore hold that the district court did not abuse its discretion in determining that the preliminary injunction was not adverse to the public interest.
Though defended by Oklahoma Solicitor General Patrick Wyrick as necessary to prevent confusion in the courts, Daniel Mach, director of the ACLU Program on Freedom and Religion and Belief [advocacy website], said in a press release [text] that "this amendment did nothing more than target one faith for official condemnation ... [and] [e]ven the state admits that there has never been any problem with Oklahoma courts wrongly applying religious law." Moreover, Chandra Bhatnagar, senior attorney with the ACLU Human Rights Program [advocacy website], added that "[a]ttempts to paint international law as irrelevant to the American legal system are wrong-headed and dangerous," and that preventing courts from considering international law violates the Constitution and undermines the ability of courts to interpret laws and treaties.

Despite its approval by voters in November 2010, the Oklahoma state amendment was soon after blocked by a federal judge [JURIST reports]. Before Tuesday's ruling, the constitutionality of the amendment has been consistently controversial, as it has been both condemned as un-American [JURIST comment], and also supported as a preemptive strike [Daily Mail report] against the use of Islamic law in Oklahoma. The lawsuit was originally filed on behalf of Muneer Awad [WT backgrounder], executive director of the Oklahoma CAIR.




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Supreme Court rules on timing of habeas corpus appeals
Hillary Stemple on January 10, 2012 11:54 AM ET

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[JURIST] The US Supreme Court [official website] issued a ruling [opinion, PDF] on Tuesday in Gonzalez v. Thaler [SCOTUSblog backgrounder; JURIST report] interpreting two sections of the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA) [materials] and holding that a judgment becomes final for the purposes of habeas corpus review when the time for pursuing direct review to either state's high court or the Supreme Court expires. Additionally the court held that a federal district court's failure to cite a constitutional issue on a certificate of appealability (COA) as required by 28 USC § 2253(c) [text] does not deprive the court of appeals of subject matter jurisdiction to hear the habeas petitioner's appeal. Petitioner Rafael Gonzalez was convicted of murder in Texas and had his conviction affirmed by the state's intermediate appellate court in 2006. Gonzalez failed to file an appeal with the Texas Court of Criminal Appeals [official website], the state's highest court for criminal appeals, and his period for discretionary review with the court expired on August 11, 2006. He filed a petition for habeas relief on January 24, 2008, alleging that a nearly 10-year delay between his indictment and trial violated his right to a speedy trial as guaranteed by the Sixth Amendment [text] of the US Constitution. Both the district court and the US Court of Appeals for the Fifth Circuit ruled that the habeas petition was barred due to failure to file the petition within one year of final judgment as required by 28 USC §2244(d)(1) [text]. In an 8-1 decision authored by Justice Sonia Sotomayor, the court concluded that §2244(d)(1) consists of two prongs, relating to distinct categories of petitioners—those seeking habeas relief at the end of a direct review, and those seeking habeas relief without exhausting direct reviews of appeals on the merits of the case. According to the court:
For petitioners who pursue direct review all the way to this Court, the judgment becomes final at the "conclusion of direct review"—when this Court affirms a conviction on the merits or denies a petition for certiorari. For all other petitioners, the judgment becomes final at the "expiration of the time for seeking such review"—when the time for pursuing direct review in this Court, or in state court, expires.
Justice Antonin Scalia authored the dissenting opinion in the case arguing that failure of a federal district court to identify a substantial constitutional violation as required by § 2253(c) should prevent the court of appeals from having jurisdiction and stating that the court's ruling "makes a hash of the statute" and its jurisdictional requirements.

The court heard oral arguments [JURIST report] in the case in November. During arguments, the petitioner argued that a COA that does not fully comply with all the requirements of the statute, nonetheless confers jurisdiction on the federal appeals court. Petitioner also argued that the one-year statute of limitations for federal habeas corpus review should not begin until the ruling is final according to State law, as opposed to a uniform federally-imposed definition of a final ruling. The state argued that, because the COA was incomplete due to the district court judge's error, it did not meet the requirements of the statute and, therefore, did not confer jurisdiction on the appeals court. The state also argued that the statute provides a two-prong to determine with the clock starts to run and that, even where that might start the clock running before state habeas corpus review becomes available, the clock should start nonetheless.




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Israel approves new law to deter illegal migrants
Andrea Bottorff on January 10, 2012 11:26 AM ET

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[JURIST] The Israeli Knesset [official website] Tuesday passed a bill that imposes harsher penalties on illegal migrants in Israel, as well as on Israelis who help illegal migrants. The bill amends the Prevention of Infiltration Law of 1954 [text], broadening the law to include not only individuals suspected of terrorism, but all illegal migrants. Under the new law, individuals living in the country illegally can be arrested and held in prison indefinitely without trial. Israelis caught helping illegal migrants will face up to 15 years in prison if the migrants are involved in criminal activities. Currently, the Israeli government may not detain illegal migrants for more than 60 days. For years, Israeli Prime Minister Benjamin Netanyahu [official profile], who voted for the bill, has expressed his concern [press release] over increasing waves of illegal immigration into Israel, particularly from Africa. Netanyahu has called such migration a "tangible threat" to the Jewish majority in the country. Amnesty International (AI) [advocacy website] has criticized the bill as a violation of human rights [press release] and international treaties, including the Refugee Rights Convention of 1951 [UNHCR materials], which aided Jewish refugees after World War II. More than 18,000 Africans are believed to have migrated illegally into Israel by crossing the border with Egypt.

The Israeli government has been active in passing strict laws in the new year. An Israeli government panel Monday approved a bill that would make it illegal to use any Nazi symbols [JURIST report], names, or images, including the use of the term "Nazi" and any clothing resembling that worn by prisoners at concentration camps. The bill would impose a fine up to USD $26,000 and a possible jail sentence of six months, although Nazi symbols would be allowed for educational and historical purposes. Last week, Knesset passed a law that changed the rules [JURIST report] governing the selection of Supreme Court [official website] justices. The law has been criticized [AP report] for undermining the independence of the judiciary in an effort to further a conservative judge favored by the government. Many fear the new laws will influence judicial decisions, impede upon the rights of the press and be used to harass liberal groups.




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Pakistan high court warns PM to comply with order to investigate president
Andrea Bottorff on January 10, 2012 9:45 AM ET

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[JURIST] The Supreme Court of Pakistan [official website] Tuesday issued an order warning Prime Minister Yousuf Reza Gilani [BBC profile] that continued failure to comply with court rulings could result in contempt of court proceedings or his removal from office [order, PDF]. The court said that Gilani has failed to follow court orders [JURIST report] to reopen corruption cases against President Asif Ali Zardari [official website]. The court also accused the government of violating the constitution and threatening the balance of power in the country:
Obedience to the command of a court, and that too of the Apex Court of the country, is not a game of chess or a game of hide and seek. It is, of course, a serious business and governance of the State and maintaining the constitutional balance and equilibrium cannot be allowed to be held hostage to political tomfoolery or shenanigans. ... We may unhesitatingly observe that in our country governed by a Constitution political loyalty cannot be accepted as stronger than loyalty to the State and dictates of a political master or party cannot be allowed to be put up as a defence to failure to obey the Constitution.
The Chief Justice will review the case and consider several options suggested by the court, including executing court proceedings against Gilani and Zardari, ordering Gilani excluded from Parliament, forming a commission to aid in the performance of the court orders or delaying a decision to allow the people to decide the next step. A hearing is scheduled for January 16, which Gilani must attend.

Pakistan has faced an ongoing struggle with corruption that the courts have attempted to battle. Last month, the Supreme Court formed a judicial committee to investigate a secret memo [JURIST report] sent from an unknown Pakistani source to US Admiral Mike Mullen in May asking for help in preventing a suspected army coup. Zardari and former Pakistan ambassador to the US Husain Haqqani have been accused of writing or having knowledge of the memo, and both have denied these allegations. Tuesday's warning stems from court orders issued when the Supreme Court struck down [JURIST report] the National Reconciliation Ordinance (NRO) [text] in 2010, which granted immunity to Zardari and 8,000 other government officials from charges of corruption, embezzlement, money laundering, murder and terrorism between January 1986 and October 1999. The NRO was signed [JURIST report] by former Pakistani president Pervez Musharraf [BBC profile] in 2007.




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Yemen cabinet approves immunity for Saleh
Jaimie Cremeans on January 10, 2012 9:09 AM ET

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[JURIST] Yemen's newly appointed Council of Ministers on Sunday approved a draft law [text, in Arabic] that would grant President Ali Abdullah Saleh [official website, in Arabic; JURIST news archive] immunity from any charges against him for alleged human rights violations from his time in office. The law also grants immunity to anyone who worked for Saleh's civil, military or security agencies during his 32-year reign as president. Some of the law's purposes are to "contribute to all the children of the Yemeni people in the process of construction and development" and "contain[] ... the effects caused by the internal crisis that occurred last period." Now that it has been passed by the council, the bill will be sent to Yemen's parliament for final approval.

UN High Commissioner for Human Rights Navi Pillay urged the Yemeni government Friday not to pass the proposed legislation [JURIST report] because it would be unjust to the victims of human rights violations. Pillay had requested an investigation [JURIST report] of Saleh and his administration in early December for alleged human rights violations in violence against protesters. The UN Security also urged the Yemeni government [JURIST report] to stop violence against protesters in September, weeks after it had issued a press release declaring a humanitarian crisis [text] in the country. Saleh agreed to step down [JURIST report] from his office in April amidst pressure from nationwide protests.




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Trial begins for last US Marine charged in Haditha killings
Jaimie Cremeans on January 10, 2012 8:30 AM ET

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[JURIST] The Western Judicial Military Circuit Court at Camp Pendleton [official website] heard opening statements Monday in the trial of the US Marine squad leader allegedly responsible for the deaths of 24 Iraqi civilians in November 2005. Staff Sgt. Frank Wuterich [advocacy website; JURIST news archive] is charged [case materials] with voluntary manslaughter, aggravated assault, reckless endangerment, dereliction of duty and obstruction of justice in relation to the killings, which took place in the Iraqi town of Haditha [JURIST news archive] after Wuterich supposedly overreacted to the roadside bombing death of a fellow Marine. Wuterich, who had no previous combat experience, allegedly ordered his men to "shoot first and ask questions later" when he sent them to hunt for insurgents [AFP report] in several houses along the road following the bombing. Many of the killed Iraqis were shot in the head inside the houses. The victims included 10 women and children killed at point-blank range. The Marine jurors for the trial include four officers and four enlisted men, ranging in rank from gunnery sergeant to lieutenant colonel, all of whom have done tours of duty in Iraq. Seven other marines were charged throughout the investigation, but charges were dismissed in six cases, and one Marine was acquitted, angering Iraqi authorities who wanted the Marines tried in Iraqi courts. Wuterich is the sole Marine still facing charges relating to the Haditha investigation.

A US military judge denied a motion to dismiss [JURIST report] the charges against Wuterich in 2010, setting the trial in motion. His trial was postponed in 2008 [JURIST report] while prosecutors appealed a decision to get rid of a subpoena for an unaired portion of a CBS interview with him regarding the incident. Wuterich was originally charged with unpremeditated murder, but that charge was dropped after a recommendation from an investigating officer [JURIST report] in 2007. Charges against Lt. Col. Jeffrey Chessani [JURIST news archive] were dropped in June 2008, a decision that was upheld [JURIST reports] the following March. Also in June 2008 1st Lt. Andrew Grayson [JURIST news archive] was cleared on all counts, including charges that he ordered a subordinate officer to delete photographic evidence [JURIST reports] of the killings. In August 2007 all charges against Lance Cpl. Justin Sharratt and Capt. Randy W. Stone were dismissed [JURIST report]. An official report on the Haditha incident by US Army Major General Eldon Bargewell found "serious misconduct" [JURIST report] at all levels of the US Marine Corps chain of command.




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Israel lawmakers approve bill banning use of Nazi symbolism
Jamie Davis on January 9, 2012 3:12 PM ET

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[JURIST] An Israeli government panel on Monday approved a bill that would make it illegal to use any Nazi symbols, names, or images, including the use of the term "Nazi" and any clothing resembling that worn by prisoners at concentration camps. A government committee approved the bill [Ynetnews report] proposed by Knesset [official website] Member Uri Ariel which would impose a fine up to USD $26,000 and a possible jail sentence of six months. The bill was not approved by the Ministry of Justice, but Justice Minister Yaakov Ne'eman said the bill will be supported after it is changed to coordinate policies of the Ministry of Justice and the Ministry of Public Security [official websites] in order to avoid infringement on rights to freedom of expression. Nazi symbols will be allowed to be used for educational and historical purposes.

Apart from Israel, Nazi symbolism has been controversial in other countries as well. In 2007, the German Federal Court of Justice ruled Nazi symbols could be used to protest extremism [JURIST report], overturning a prior decision by a state court in Stuttgart. The lower court had ordered Juergen Kamm, who began an Internet company called Nix Gut, to pay a fine of 3,600 euros (US $4,600) for selling T-shirts and badges featuring a swastika surrounded by a red circle and slash. Judge Walter Winkler ruled that for any symbol to be allowed, the anti-Nazi meaning had to be immediately apparent. In 2005, The EU ended consideration of proposals [JURIST report] that would have banned Nazi symbols in the 25-country bloc after it became apparent that member states could not agree on which symbols should be included in the ban.




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Supreme Court hears arguments in Texas redistricting case
Jaclyn Belczyk on January 9, 2012 2:33 PM ET

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[JURIST] The US Supreme Court [official website] heard oral arguments [day call, PDF] in three cases Monday, including the Texas redistricting controversy [transcript, PDF]. The court agreed last month to hear an emergency appeal [JURIST report] challenging an interim map drawn up by the US District Court for the Western District of Texas while a separate map drawn up by the state legislature is currently being challenged in the US District Court for the District of Columbia [official websites] for compliance with the Voting Rights Act (VRA) [Cornell LII backgrounder]. Two of the cases are titled Perry, et al. v. Perez, et al. and will deal with the Texas state House and the US congressional delegation, respectively, and the third case, titled Perry, et al. v. Davis, et al., deals with the Texas state senate. It was unclear Monday how the justices would decide the case, but they must act quickly, with the 2012 primary elections approaching.

In Sackett v. Environmental Protection Agency [transcript, PDF; JURIST report], the court heard arguments on whether the Environmental Protection Agency (EPA) [official website] can enforce a compliance order issued without any opportunity to contest the order. The Sacketts own land near Priest Lake, Idaho, on which they intended to build a house. After purchasing the property and obtaining local permits, they began to grade the land for construction of a house. They received an EPA Administrative Compliance Order that said the grading of the land was in violation of the Clean Water Act (CWA) [text, PDF] and imposed harsh civil penalties for non-compliance. The Sacketts disagree that their property is a wetland under the meaning of the CWA. The case raises the issue of whether the CWA precludes pre-enforcement judicial review, and if so, whether that violates the petitioner's Due Process [Cornell LII backgrounder] rights. The US Court of Appeals for the Ninth Circuit upheld [opinion, PDF] the dismissal of the suit. The justices appeared skeptical of the EPA's arguments Monday, with Justice Samuel Alito asking the EPA's lawyer, "if you related the facts of this case as they come to us to an ordinary homeowner, don't you think most ordinary homeowners would say this kind of thing can't happen in the United States?"

In Kappos v. Hyatt [transcript, PDF; JURIST report], the court heard arguments on patent law. When the US Patent and Trademark Office (PTO) [official website] denies an application for a patent, the applicant may seek judicial review of the agency's final action through either of two avenues. The applicant may obtain direct review of the agency's determination in the US Court of Appeals for the Federal Circuit under 35 USC § 141 [text]. Alternatively, the applicant may commence a civil action against the Director of the PTO in federal district court under 35 USC § 145 [text] The court will decide whether a plaintiff in a § 145 action may introduce new evidence that could have been presented to the agency in the first instance. The court will also consider whether, when new evidence is introduced under § 145, the district court may decide de novo the factual questions to which the evidence pertains, without giving deference to the prior decision of the PTO. The Federal Circuit held [opinion, PDF] that "§ 145 imposes no limitation on an applicant's right to introduce new evidence before the district court."




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Rights group says violence in North Africa, Middle East likely to continue
Jamie Davis on January 9, 2012 2:00 PM ET

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[JURIST] Violence and protests in Middle Eastern and North African countries are likely to continue throughout the next year unless each country's government recognizes the purpose behind the movement and makes the changes being asked of them, Amnesty International (AI) [advocacy website] reported [text, PDF] Monday. The 80-page report also says that those participating in the protest movement [WP backgrounder], commonly referred to as "Arab Spring," for complete government reform in countries including Libya, Egypt and Iraq [JURIST news archive], remain undeterred despite displays of violence as government response to the protests. AI expressed concerns [press release] that governments were not making changes as quickly as promised. In reference to Egypt, AI said:
Freedom of expression, association and assembly were promised, but the harsh reality is that criticism of the new authorities is not tolerated, activists are being targeted, and NGOs are being threatened with intrusive criminal investigations. Peaceful demonstrators continue to be forcibly dispersed, leading to clashes with riot police and deaths. Greater political participation by all Egyptians was promised, yet women have again been marginalized. Many independent trade unions have been formed, but the authorities have banned strikes. A better future for all Egyptians was promised, but nearly one year on millions of people continue to live in slums and in poverty, and wait for their voices to be heard.
AI also made recommendations on changes that should be made in the Middle East and North Africa. Among those discussed, reformation of the security forces, reformation of the justice system and ensuring each country's laws are in accordance with international laws rank at the top of the list.

The violence and protests have have also caused concern at the UN. In December, UN Secretary-General Ban Ki-Moon issued a statement chastising both the government of President Bashar al-Assad and violent protesters regarding the continuous bloodshed in Syria [JURIST report]. Also in December UN High Commissioner for Human Rights Navi Pillay condemned the brutal crackdown [JURIST report] on protesters by military and security forces in Egypt. In November, AI issued a 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.




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Blackwater settles last lawsuit in 2007 Baghdad shooting incident
Jamie Reese on January 9, 2012 1:04 PM ET

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[JURIST] Blackwater [JURIST news archive], now known as Academi [corporate website], reached a confidential settlement agreement Saturday with survivors and families of victims in a 2007 shooting incident [JURIST report] in the Nisour Square area of Baghdad that left 17 Iraqi civilians dead. A subsequent FBI [official website] investigation revealed that 14 of the deaths were unjustified acts of excessive force [NYT report]. A federal judge ruled last year that the lawsuit could proceed [JURIST report] in North Carolina state court, saying that nonresidents lack the right to sue in federal court for injuries sustained outside of the country but that federal courts are obligated to remand such cases to the state level, where North Carolina law permits such suits. Lawyers for the victims confirmed the settlement [AP Report], and Academi said the settlement would allow the company to move forward while providing compensation to the victims and allowing closure for the losses they suffered. This settlement closes the last lawsuit against the company for the 2007 incident.

Two ex-Blackwater contractors were convicted of manslaughter and sentenced to two-and-a-half years in prison [JURIST reports] last year for their role in the shooting deaths of two Afghan nationals and the wounding of a third. In April a federal grand jury indicted five former Blackwater executives [JURIST report] on charges of weapons violations and lying to investigators. In 2010 the Iraqi government ordered 250 former Blackwater employees to leave Iraq in reaction to the dismissal of criminal charges [JURIST reports] against the guards involved in the 2007 shooting incident. The same month, the Department of Justice [official website] also opened an investigation [JURIST report] into whether Blackwater bribed the Iraqi government to be permitted to continue operating in Iraq following the 2007 shootings. Blackwater ceased operations in Baghdad [JURIST report] in May 2009 when its security contracts expired and were not renewed.




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Supreme Court to rule on federal payment for American Indian tribes
Andrea Bottorff on January 9, 2012 11:23 AM ET

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[JURIST] The US Supreme Court [official website] granted certiorari [order list, PDF] Friday in Salazar v. Ramah Navajo Chapter [docket; cert. petition, PDF] to determine whether the federal government must pay American Indian tribes all contract-related costs incurred under the Indian Self-Determination and Education Assistance Act [text], where the contract support costs exceed the funds that the government has made available to pay such costs. The US Court of Appeals for the Tenth Circuit in May interpreted the statutory language in favor of the tribal contractors [opinion, PDF], stating that the federal government must pay the costs because the annual federal funds available under the act were sufficient to cover any individual contract.

Also Friday, the court agreed to rule in Florida v. Jardines [docket, cert. petition, PDF] to determine whether the use of a drug-sniffing dog at the front door of a house is a search under the Fourth Amendment [text] requiring probable cause. The Supreme Court of Florida ruled [opinion, PDF] in April that the "sniff test" was a search under the Fourth Amendment and required probable cause, not reasonable suspicion.

On Monday the court denied certiorari [order list, PDF] in Cash v. Maxwell [docket], upholding the Ninth Circuit decision [opinion, PDF] reversing the 1984 conviction of Bobby Joe Maxwell for the murders of 10 homeless men. The Ninth Circuit presented evidence showing that Maxwell's conviction had been based on testimony from an unreliable witness. However, Justices Scalia and Alito dissented to the denial of certiorari, arguing that the Ninth Circuit relied on circumstantial evidence and that the Antiterrorism and Effective Death Penalty Act of1996 (AEDPA) [text] prevented federal reconsideration of the case. Also Monday, the court affirmed a lower court ruling in Bluman v. FEC [docket; jurisdictional statement, PDF] that foreign nationals living in the US cannot contribute to US election campaigns, making clear that its controversial decision in Citizens United v. FEC [JURIST report] does not extend beyond US citizens.




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Bahrain court overturns death sentences for two protesters
Sarah Posner on January 9, 2012 10:32 AM ET

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[JURIST] A Bahrain court on Monday overturned the death sentences for two protesters convicted of killing two police officers during the demonstrations that took place in the country last year. Bahrain was guided by recommendations from a panel of international investigators in its decision to transfer the protesters' case to civilian court [AP report]. This case was transferred to civilian court along with several other cases including two high-profile cases of doctors and medical professionals who treated injured protesters.The original conviction [JURIST report] was rendered by a special security court set up as part of the emergency law in place while the country's Sunni rulers attempted to silence a Shiite-led effort bolster civil and political rights in the country. The demonstrations in Bahrain began last February, during the protests that took place across that Arab world. Since then, over 40 protesters have died.

In December UN High Commissioner for Human Rights Navi Pillay said that the Bahrain government should release prisoners detained during peaceful protests [JURIST report] and focus on rebuilding national trust in the government. Pillay's statement followed a visit by a team of human rights officials to Bahrain at the invitation of the Bahrain government. In November Bahraini King Hamad bin Isa Al Khalifa [official website] ordered a special commission [JURIST report] to look into government recommendations made in a report by an independent Bahraini government commission. The report stated that Bahrain authorities used excessive force [JURIST report] and tortured detainees involved in the pro-democracy demonstrations earlier this year. Also in November, the Bahrain government admitted the use of excessive force [JURIST report] in anticipation of the independent report.




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Malaysia opposition leader cleared of sodomy charges
Andrea Bottorff on January 9, 2012 9:49 AM ET

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[JURIST] The Kuala Lumpur High Court [official website] on Monday acquitted Malaysian opposition leader and former deputy prime minister Anwar Ibrahim [official profile; JURIST news archive] of charges that he sodomized a former male political aide. High Court Judge Mohamad Zabidin Diah said during the ruling that there was reasonable doubt [AP report] in the case because of unreliable DNA evidence. Anwar has consistently argued that the allegations were a politically motivated attempt to silence his opposition to the current administration. In response, Prime Minister Najib Razak [official profile] said Monday the accusations against the government were unfounded [Bernama report] because the ruling shows the independence of the judiciary from politics. After the verdict, Anwar announced that he planned to run in the upcoming elections and hoped to oust Razak from power. Under Malaysian law, sodomy is punishable by 20 years in prison regardless of consent. Amnesty International [advocacy website] praised the ruling and urged Malaysia to repeal its sodomy law [press release], calling the criminalization of adults' consensual sexual acts a human rights violation.

The two-year sodomy trial concluded last month when the prosecution delivered its closing arguments, following the defense's closing arguments in October and Anwar's testimony in August denying the charges [JURIST reports]. A Malaysian court ruled [JURIST report] in May that prosecutors had enough evidence to continue to pursue the sodomy case against Anwar. The opposition leader was arrested in July 2008 after he filed a lawsuit against his accuser [JURIST reports] a month earlier. In December 2010, Anwar filed a complaint [JURIST report] in a Malaysian court over a WikiLeaks [website] cable published by Australian newspapers stating he had engaged in sodomy. Anwar was Malaysia's deputy prime minister under former Mahathir Mohamad until he was fired in 1998 following earlier sodomy charges of which he was initially convicted but later acquitted. He reentered Malaysian politics following the expiration of a 10-year ban [JURIST report] against him for unrelated corruption charges.




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Iran court sentences alleged CIA spy to death
Sarah Posner on January 9, 2012 9:40 AM ET

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[JURIST] An Iranian court on Monday sentenced Iranian-American ex-marine American Amir Mirzaei Hekmati to death for espionage. Iran accused Hekmati of spying for the US Central Intelligence Agency (CIA) [official website] and cooperating with an enemy government in an attempt to accuse Iran of terrorism [FNA report]. The conviction is largely based on a televised confession in which Hekmati admitted to entering the country with the intent to infiltrate the Islamic Republic of Iran's intelligence systems. The sentencing [CNN report] came five months after Hekmati's arrest. His family alleges that the Iranian trial was not fair or transparent and maintains that Hekmati went to Iran to visit his grandmother. The US has repeatedly demanded Hekmati's release, claiming he was falsely accused.

Preliminary hearings [JURIST report] for Hekmati began last month. Leading evidence against Hekmati included the confession made on Iranian state television [Naharnet report] where he admitted his mission was to infiltrate Iran's intelligence systems by initially offering information to gain their trust and in order to find evidence that Iran was involved in terrorist activity [CNN report]. Herkmati told the court that he was fooled by the CIA and did not want to hurt Iran, according to a Fars News report [FNA report]. The US contends that the allegations against Hekmati are false and that his confessions were forced [AFP report].




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Syria releases more than 500 prisoners as part of Arab League agreement
Ashley Hileman on January 8, 2012 4:58 PM ET

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[JURIST] Syrian authorities on Thursday released 552 prisoners as a part of the country's agreement with the Arab League [official website, in Arabic]. The prisoners were detained [NYT report] due to allegations that they were involved in "terrorist" activities. While more than 3,500 detainees have recently been released, human rights group Avaaz [advocacy website], estimates that 37,000 more remain in custody, despite the agreement, which demands that President Bashar al-Assad [BBC profile] free political prisoners, along with other requirements, including the removal of security forces and heavy weapons from cities. Avaaz also alleges that many prisoners remaining in detention are tortured. Human Rights Watch (HRW) [advocacy website] recognized that Syria has taken a few steps forward in meeting the obligations of the Arab League agreement but claims that the country has failed to honor [press release] the majority of these, and has even attempted to mislead Arab League monitors. As a result, HRW has urged the Arab League, which was scheduled to meet on Sunday to discuss the mission, to "draw clear lines regarding the Syrian government's responsibilities under the agreement and the conditions that need to be met for its monitors to do their essential work."

Last month UN Secretary-General Ban Ki-Moon [official website] condemned [JURIST report] leaders of the Syrian government and violent protesters for the continuous bloodshed within the country. Approximately 44 people were killed [Al Jazeera report] before Christmas in two suicide car bomb attacks in Damascus. The Syrian Arab News Agency (SANA) [official website] has since linked the attacks to anti-government protests, while protesters and their supporters have suggested that the state planted attacks to coincide with an Arab League visit. Ban's press release pleaded that both groups resist violence. The UN Security Council [official website] echoed Ban's sentiments the same day, declaring [UN News Centre report] that the recent car bombings were acts of terrorism. The UN Office of the High Commissioner for Human Rights [official website] reports that more than 5,000 people have died since anti-government protests began last March.




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UN criticizes increased use of capital punishment in Saudi Arabia
Jennie Ryan on January 8, 2012 10:27 AM ET

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[JURIST] The UN Office of the High Commissioner for Human Rights (OHCHR) [official website] on Friday expressed alarm [press release] over the increased use of capital punishment in Saudi Arabia, including increased use of torture to obtain confessions. According to OHCHR spokesperson Rupert Colville, executions in Saudi Arabia have nearly tripled since 2010. He also expressed concern over the recent sentencing of six Saudi men to "cross amputation," a punishment that involves amputating the right hand and left foot of a convicted individual. Saudi Arabia is a party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [text], an absolute prohibition against torture and certain forms of cruel punishment. In a statement to reporters, Colville said "[w]e call on the Kingdom of Saudi Arabia to respect international standards guaranteeing due process and the protection of the rights of those facing the death penalty, to progressively restrict the use of the death penalty and to reduce the number of offences for which it may be imposed." Saudi Arabia imposes the death penalty for a number of crimes, including witchcraft and sorcery.

Saudi Arabia has been criticized for its capital punishment practices in the past. In July Amnesty International (AI) [advocacy website] called for a halt to executions [JURIST report] in Saudi Arabia, claiming there is often a lack of basic procedural due process. AI cited the increase in capital punishment over 2011 as cause for concern. In 2008 AI released a report finding that Saudi Arabia executed more people per capita than any other nation [JURIST reports]. According to that report, at least 1,252 people were put to death in 24 countries, with Saudi Arabia, China, Iran, Pakistan and the US accounting for the vast majority of the executions. In July of that year, Human Rights Watch (HRW) [advocacy website] released a report criticizing a lack of legal protections [JURIST report] for the 1.5 million migrant domestic workers in Saudi Arabia. Among other proposed reforms, HRW called on the Saudi government to amend the 2005 Labor Law to cover migrant workers.




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UN rights chief urges Yemen to deny amnesty for human rights violations
Michael Haggerson on January 7, 2012 3:10 PM ET

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[JURIST] UN High Commissioner for Human Rights Navi Pillay [official profile] on Friday urged Yemen to accept the international prohibition against granting amnesty for human rights violations [press release]. Yemen is currently considering passing legislation which would grant amnesty for a period during which human rights violations [OHCHR backgrounder] may have taken place. She stressed that victims deserved justice and "amnesties are not permissible if they prevent the prosecution of individuals who may be criminally responsible for international crimes including war crimes, crimes against humanity, genocide, and gross violations of human rights."

In June the UN Office of the High Commissioner for Human Rights (OHCHR) [official website] announced plans to send a panel to investigate the human rights situation in Yemen [JURIST report]. Rights groups have criticized Yemen for its handling of pro-democracy protests that have persisted since February. Amnesty International (AI) [advocacy website] released a report [text; PDF] in April urging the international community to pressure Yemeni authorities to investigate protestor deaths. Just days earlier, the OHCHR urged the Yemeni government [JURIST report] to discontinue using force against peaceful protesters. The Yemeni Parliament enacted several emergency measures [JURIST report] in March at the request of President Ali Abdullah Saleh [official website, in Arabic] in an effort to end anti-government protests. Saleh, who agreed to step down in April [JURIST report], and his party, the General People's Congress (GPC), had caused mounting political tensions due to attempts to remove presidential term limits [JURIST report] and expand their political power. In December, the parliament stoked outrage among opposition parties and independents when it amended the constitution [AFP report] to eliminate provisions requiring that opposition parties be represented on the high election commission.




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Afghanistan commission calls for detainee custody transfer, alleges US abuse
Jerry Votava on January 7, 2012 12:02 PM ET

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[JURIST] An investigative commission in Afghanistan issued a statement on Saturday alleging the abuse of prisoners held by the US military at prisons in their country. The commission called for the transfer of all prisoners [AP report] held by the US military to Afghan custody. The detainees [JURIST news archive] held by US forces are a combination of Afghan nationals and foreign al Qaeda operatives. The commission also alleged that some prisoners are being held without evidence and called for their release. The commission was created [JURIST report] by Afghan President Hamid Karzai [official profile; JURIST news archive] in June 2010.

The status of the detainees held by the US has also been an issue at controversy in the American courts. In February 2011 District Judge John Bates of the US District Court for the District of Columbia [official website] granted a motion to amend [JURIST report] petitions for writs of habeas corpus for four detainees held at Bagram Air Base [official website; JURIST news archive]. In May 2010 a panel of the US Court of Appeals for the District of Columbia Circuit ruled that detainees held at Bagram Air Base cannot bring habeas corpus challenges in US courts [JURIST report]. In January 2010 the US Department of Defense released a list of names of 645 prisoners then detained at Bagram in response to a Freedom Of Information Act lawsuit filed [JURIST reports] by the ACLU in September 2009.




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US government defends health care minimum coverage requirement
Michael Haggerson on January 7, 2012 11:20 AM ET

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[JURIST] The federal government filed a brief [text, PDF] on Friday before the US Supreme Court [official website] arguing that the minimum coverage provision of the Patient Protection and Affordable Care Act (PPACA) [HR 3590; JURIST backgrounder], which requires almost every US citizen to obtain health insurance by 2014 or face a tax penalty, is constitutional. The government is attempting to keep the focus of the argument on health care reform as a whole [SCOTUSblog report], rather than on the specific minimum coverage provision. Twenty-six states filed a supporting brief [text, PDF] arguing that the minimum coverage provision cannot be severed from the health care reform act without the entire system collapsing. The federal government argues that the insurance-purchase mandate is not a new concept invented by the Left and even points to the fact that several conservative groups, including the American Enterprise Institute and the Heritage Foundation [advocacy websites], proposed such a solution when then-president Bill Clinton proposed health care reform in the 1990s. Critics of the minimum coverage provision argue that there would be no end to government power if the federal government can impose tax penalties for declining to purchase a private corporate product. The so-called "broccoli question" [Forbes report] asks: if the federal government can penalize you for not purchasing health insurance, can it then also penalize you for not purchasing broccoli? In response, the government has argued that its power to impose tax penalties for not purchasing health insurance is rooted firmly in the government's commerce-regulating power under the Commerce Clause [Cornell LII backgrounder]. The government cited the fact that in 2008 uninsured individuals used $116 billion in healthcare services (37 percent of which was uncompensated and 26 percent of which was paid by charities and government programs) and visited hospitals 2.1 million times. The uncompensated 37 percent of the health care services used, $43 billion, is then passed onto insured individuals, costing the average insured family more than $1000 per year. The federal government argues that this national cost-shifting mechanism implicates interstate commerce, thus it has the power to regulate it.

The court granted certiorari to rule on health care reform law [JURIST report] 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.




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Rights groups urge Tunisia not to extradite former Libya PM
Jerry Votava on January 7, 2012 11:17 AM ET

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[JURIST] The Tunisian League for the Defense of Human Rights, Amnesty International, Human Rights Watch (HRW) [advocacy websites] and 12 other human rights groups issued a statement on Friday urging the government of Tunisia not to extradite 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. The statement [AP report] urges Tunisian President Moncef Marzouki [official website, in Arabic] to seek guarantees from the Libyan government that al-Mahmoudi will be kept safe and will receive a fair trial, and not to sign the extradition order in the absence of those guarantees. Reports indicate that al-Mahmoudi fears for his safety and claims to be the sole possessor of Libyan state secrets following the death [JURIST reports] of ousted Libyan leader Muammar Gaddafi [BBC obituary; JURIST news archive] in October. Some commentators have argued that African tyrants should be tried in their home countries [JURIST op-ed].

In November a Tunisian court ordered al-Mahmoudi's extradition, and HRW issued a statement [JURIST reports] urging Tunisia not to carry out the extradition. 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. 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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Turkish general arrested for alleged connection to Ergenekon plot
Michael Haggerson on January 6, 2012 3:44 PM ET

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[JURIST] Retired Turkish general Ilker Basbug, formerly the leader of all of Turkey's armed forces, was arrested on Friday for his alleged involvement with the Ergenekon [BBC backgrounder; JURIST news archive] network. The group allegedly planned to assassinate prominent members of Turkey's Christian and Jewish minority groups, blame Islamic terrorists for the deaths and use this to delegitimize the ruling Justice and Development Party (AKP) [party website, in Turkish]. Basbug is the highest ranking military officer to be indicted [BBC report] in connection with Ergenekon. Approximately 400 individuals are currently on trial in connection with Ergenekon. Basbug claims that he is innocent and lower-ranking military officials who have been indicted state that they were just acting within the chain of command. Critics of the Islam-rooted AKP ruling party contend that the Ergenekon investigation is intended to silence the party's opponents and impose Islamic principles [JURIST report], but the government denies any such charges.

In March 2010 the Turkish government indicted 33 defendants [JURIST report] on charges of attempting to overthrow the government and establish military rule, and Turkish police detained 20 people [JURIST report] in connection with the Ergenekon plot. Turkish prosecutors charged [JURIST report] an army general and a state prosecutor with belonging to Ergenekon and plotting to overthrow the AKP. In February of that year more than 40 military officers were arrested and charged in a separate coup attempt [JURIST report], the so-called Sledgehammer plot [Al Jazeera backgrounder], to provoke a military confrontation with Greece and take advantage of the ensuing chaos. Trials against the Ergenekon group started [JURIST report] in October 2008, and nearly 400 people have been charged in connection with it. The prosecution of military officials comes amid a larger effort by the AKP to reform the Turkish legal system as a step toward EU accession [materials; CFR backgrounder]. In May 2010, Turkey's opposition Republican People's Party [party website, in Turkish] filed suit [JURIST report] in the country's Constitutional Court [official website, in Turkish] in an effort to halt proposed constitutional amendments that would reform the judiciary allowing military and government officials to be tried in civilian court.




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FBI updates rape definition to include men
Julia Zebley on January 6, 2012 2:09 PM ET

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[JURIST] The FBI (FBI) and the US Department of Justice (DOJ) [official websites] announced an official update of the federal government's definition of rape [press release] to include the violation of "any person" rather than the previous definition that only covered women. The previous definition had been unchanged for 85 years. The new definition, "The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim," is primarily used in the Uniform Crime Reports (UCR) [materials], an annual statistical analysis of crimes in the US. Before this year, any rape of a man was not included in the US government's official rape statistical reports. This crime, not only under-reported, has thus also been under-represented statistically as well. Other updates are implied in this new definition with the inclusion of a consent provision:
The revised definition includes any gender of victim or perpetrator, and includes instances in which the victim is incapable of giving consent because of temporary or permanent mental or physical incapacity, including due to the influence of drugs or alcohol or because of age. The ability of the victim to give consent must be determined in accordance with state statute. Physical resistance from the victim is not required to demonstrate lack of consent. The new definition does not change federal or state criminal codes or impact charging and prosecution on the local level.
The previous definition was simply "carnal knowledge of a female forcibly and against her will."

Last month, the FBI announced that violent crime in the US has dropped [JURIST report], continuing a trend lasting for the past four-and-a-half years. Violent crimes, which include murder, forcible rape, robbery and aggravated assault, dropped 6.4 percent in the first months of 2011 compared to the same time in 2010. Property crimes, including burglary, larceny theft and motor vehicle theft, dropped 3.7 percent and arson decreased 8.6 percent. The FBI data is a compilation of more than 18,000 jurisdictions that voluntarily participate in the FBI's UCR Program. However, with the amended definition of rape, non-forcible rapes and rapes of men will now be included in the statistical analysis, so the violent crime rate next year should reflect that shift.




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Belarus Internet restrictions take effect
Julia Zebley on January 6, 2012 1:05 PM ET

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[JURIST] Internet restrictions [Law 317-3 text, in Russian] passed in February 2010 are set to go into effect in Belarus on Friday, amid international criticism. The law creates several tiers of limitations on the Internet. Anyone who owns a shared connection, or a CyberCafe, must monitor all users to insure that they do not visit a "blacklisted" site, or, in some cases, simply a site hosted off of Belarus servers. Users are required to identify themselves, and the owners of shared connections must keep a surfing history of each user for at least a year. Violations of any of these provisions may result in fines. The State Inspection on Electronic Communications, a subsidiary of the Ministry of Communications and Informatization [official website] will issue the blacklist, which thus far includes pornography, websites that advocate violence or extremism, opposition group websites and some Belarusian news organizations. The law largely deals with the fines and penalties for those designated to monitor networks and is ambiguous on what will be done to users who manage to see restricted material. Reporters without Borders [advocacy website] condemned [press release] the new law, describing it as, "a survival reflex on the part of a government weakened by the unrest that followed President Lukashenko's disputed re-election."

Belarus has been under increasing criticism for what many see as a rapid decline of human rights in the Eastern European nation. US President Barack Obama [official website] on Tuesday signed the Belarus Human Rights and Democracy Act of 2011 [JURIST report], which will impose new sanctions on Belarus. The new sanctions require the US to investigate Belarus' arms deals and its possible censorship of the Internet, as well as denying visas to a list of Belarusian officials. In November a Belarus court convicted [JURIST report] 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, sentencing him to a four-and-a-half-year prison term amid international criticism. 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.




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Federal jurisdiction and venue act takes effect
Michael Haggerson on January 6, 2012 12:20 PM ET

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[JURIST] The Federal Courts Jurisdiction and Venue Clarification Act (JVCA) [text, PDF; materials] took effect Friday after being signed into law by US President Barack Obama [official website] last month. According to the House Judiciary Committee Report [text, PDF], the purpose of the law is to clarify federal jurisdiction statutes to avoid wasting judicial resources. The core of the JVCA's changes address jurisdiction and procedure for removal of state court claims to federal court. Among those changes, the JVCA states that inclusion of unrelated state claims does not prevent removal that is otherwise appropriate under federal question jurisdiction, and it adopts a "preponderance of the evidence" standard for determining the amount in controversy requirement for diversity jurisdiction. The JVCA also codified the judicially-created "rule of unanimity," which states that all defendants who have been properly joined and served to the action must consent to the removal of the action to federal court.

Some commentators support the overall purpose of the JVCA, but disagree [JURIST op-ed] with its specific method of attaining that purpose. First, it is difficult to superimpose new statutory procedures over existing interpretations in case law and there is additional difficulty in integrating the newly codified procedures with the many different interpretations of the existing laws in state courts. Concern has also been expressed over the fact that there were no hearings on the bill since 2005, and thus two potentially beneficial provisions were deleted without debate [JURIST op-ed]. The first would allow a plaintiff to avoid removal based on diversity jurisdiction by stipulating that the amount in controversy is below the required amount for diversity jurisdiction. The second provision, which would abrogate derivative jurisdiction in all cases, was deleted because the Department of Justice [official website] wants to be able to use the rule "when suits involving Federal officers and agencies are removed to Federal court." Other commentators point out [National Law Review report] that "while the Act does not eliminate the prior law's provision that the 30-day removal period is triggered by service or 'receipt' of the pleading, there is no indication that Congress intended to abrogate [the current practice], holding that formal service, not mere receipt, is required."




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Michigan domestic partner benefits ban challenged
Jaclyn Belczyk on January 6, 2012 11:54 AM ET

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[JURIST] The American Civil Liberties Union (ACLU) [advocacy website] on Thursday filed a challenge [complaint, PDF; press release] to Michigan's new law [HB 4770 text, PDF] prohibiting public employers from providing medical or other fringe benefits to their employees' domestic partners. Governor Rick Snyder [official website] signed the legislation [JURIST report] last month. The ACLU claims the law unlawfully discriminates against same-sex couples who cannot legally marry in Michigan, violating the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the US Constitution:
Because unmarried opposite-sex couples can become eligible for family benefits by marrying, and employers remain free to offer family health care benefits to any other family members, including aunts, nieces, siblings, or cousins, the only family members whom the Public Employee Domestic Partner Benefit Restriction Act bars from receiving family health care benefits are the domestic partners of lesbian and gay workers. The Act therefore imposes on gay and lesbian employees' families alone the burdens of being uninsured or underinsured: financial hardship, health-related anxiety, stress, and medical risk.
The suit was filed on behalf of four same-sex couples in long-term committed relationships.

Many states, like Michigan, are facing issues pertaining to benefits for same-sex partners. In November the ACLU filed a brief [JURIST report] against a similar bill in Montana after the state approved a law that denied partnership benefits to same-sex couples. They argued that the new law violates of the Montana Constitution. The US Court of Appeals for the Ninth Circuit [official website] ruled [JURIST report] in September that a bill [text, PDF] rescinding health benefits for same-sex couples in the public sector is against the equal protection clause of the Arizona Constitution.




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Iowa court orders both same-sex parents be included on birth certificate
Jennie Ryan on January 6, 2012 11:04 AM ET

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[JURIST] An Iowa District Court [official website] on Wednesday ordered [judgment, PDF] that the Iowa Department of Public Health [official website] must include both names of married same-sex parents on children's birth certificates. Melissa and Heather Gartner sued the Iowa Department of Public Health after officials refused to include the name of their child's non-biological parent on the child's birth certificate unless the non-biological parent adopted the child. The Gartners are legally married in Iowa, a state that legalized gay marriage [JURIST report] in 2009. The court held that because same-sex marriage is legal in the state, the Department of Public Health erred in refusing to include the name of the non-biological parent on the child's birth certificate. The court refused to require the non-biological same-sex parent to adopt the child in order to be listed on the birth certificate, and it ordered the Department of Public Health to issue a new document including the names of both parents. The Department of Public Health has the option to appeal the decision.

In October the US Supreme Court [official website] denied certiorari [JURIST report] in Adar v. Smith [backgrounder], in which a same-sex couple asked Louisiana to include both of their names on the birth certificate of their adopted child. The issue presented was whether denying non-married couples from having both names appear on an adopted child's birth certificate is a violation of the Equal Protection Clause of Fourteenth Amendment to the US Constitution. Gay rights group Lambda Legal [advocacy website] filed the petition for writ of certiorari [JURIST report] in July after the US Court of Appeals for the Fifth Circuit [official website] ruled [opinion, PDF; JURIST report] en banc against the parents in April, finding that "adoption is not a fundamental right," and that "Louisiana has a legitimate interest in encouraging a stable and nurturing environment for the education and socialization of its adopted children." The appeals court ruling in April overturned a prior decision [JURIST report] in February by a panel of three judges from the Fifth Circuit ordering that the revised birth certificate be issued.




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Federal judge dismisses ex-State Department employee's diplomatic immunity suit
Jennie Ryan on January 6, 2012 9:59 AM ET

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[JURIST] A judge in the US District Court for the District of Columbia [official website] on Thursday dismissed [order, PDF] a lawsuit brought by a former State Department [official website] employee demanding diplomatic immunity against charges she participated in the kidnapping and rendition of a terrorism suspect abroad. The former State Department employee, Sabrina De Sousa, brought the suit after being tried in absentia in 2009 in an Italian court for the alleged kidnapping of Muslim cleric Osama Moustafa Hassan Nasr. De Sousa was one of 23 US officials convicted of the alleged kidnapping [JURIST report] in 2009. In her suit, De Sousa argued that the Department of Justice (DOJ) [official website] should be required to grant her immunity in the case. Lawyers for the government argued that courts have no authority to interfere with its foreign policy decisions. The district court dismissed the suit stating that the question of the "plaintiff's entitlement to immunity ... is a political question that lies beyond the competence of this Court." Although the court held it was bound by law to dismiss the suit, it expressed concerns about the government's handling of the case, saying it may send a message to "civilian government employees serving this country on tours of duty abroad ... [that is] a potentially demoralizing one."

In December 2010 an Italian appeals court upheld the convictions [JURIST report] of 23 former CIA agents convicted in the 2003 kidnapping and rendition [JURIST news archive] of terror suspect Nasr, increasing their sentences. De Sousa's original five-year sentence was increased to seven years. Nasr, also known as Abu Omar, was seized on the streets of Milan in 2003 by CIA agents with the help of Italian operatives, then allegedly transferred to Egypt and tortured by Egypt's State Security Intelligence before being released [JURIST reports] in February 2007. In September 2009 the DOJ filed a motion to dismiss [JURIST report] the lawsuit brought by De Sousa seeking diplomatic immunity against the Italian charges. The CIA's rendition program has been the source of much controversy and litigation. In 2009 President Barack Obama announced [JURIST report] the US would continue its practice of sending terror detainees to third countries for interrogation with increased oversight by the State Department to prevent torture.




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Egypt prosecutors seek death penalty for Mubarak
Matthew Pomy on January 5, 2012 3:31 PM ET

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[JURIST] Egyptian prosecutors announced Thursday they will be seeking the death penalty for former president Hosni Mubarak [Al Jazeera profile], former interior minister Habib El Adly and four of his aides accused of ordering the killing of anti-government protesters [JURIST news archive] last year. This announcement came on the last day to make statements to the court panel [Tripoli Post report]. The defendants will present their case Monday with a decision expected by January 25. While the prosecution claims to have a strong case, Mubarak and others continue to maintain their innocence.

The trial for ex-president Mubarak has been tumultuous. It was adjourned for all of November and reopened in December [JURIST reports]. In September, violence broke out [JURIST report] in the courtroom when plaintiffs and their lawyers clashed with Mubarak supporters. In August, presiding Judge Ahmed Rifaat decided to end live TV broadcasts [JURIST reports] of subsequent proceedings amid protests from the families of victims and praise from several courtroom lawyers who opposed the broadcasts. Amnesty International (AI) [advocacy website] reported that at least 840 people were killed [JURIST report] and more than 6,000 injured during the Egyptian protests.




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Obama signs new sanctions against Belarus into law
Jerry Votava on January 5, 2012 2:24 PM ET

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[JURIST] US President Barack Obama [official website] on Tuesday signed the Belarus Human Rights and Democracy Act of 2011 [text, PDF], which will impose new sanctions on Belarus. The law labels President Alexander Lukashenko [BBC profile; JURIST news archive] a dictator and states that he "established himself in power by orchestrating an illegal and unconstitutional referendum that enabled him to impose a new constitution, abolishing the duly elected parliament." The new sanctions require the US to investigate Belarus' arms deals and its possible censorship of the Internet, as well as denying visas to a list of Belarusian officials. The bill also calls on the International Ice Hockey Federation [official website] to change the location of the 2014 International World Ice Hockey Championship, currently scheduled in Minsk, which the US believes will "legitimize" the Belarusian government. The legislation was passed by Congress [JURIST report] in late December.

Belarus has been under increasing criticism for what many see as a rapid decline of human rights in the Eastern European nation. In November a Belarus court convicted [JURIST report] 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, sentencing him to a four-and-a-half-year prison term amid international criticism. 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.




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Federal judge grants ACLU motion to dismiss Arizona medical marijuana challenge
Matthew Pomy on January 5, 2012 1:25 PM ET

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[JURIST] A judge for the US District Court for the District of Arizona [official website] on Wednesday granted an American Civil Liberties Union (ACLU) [advocacy website] motion to dismiss a lawsuit [order, PDF] challenging Arizona's voter approved medical marijuana law, the Arizona Medical Marijuana Act [text, PDF]. The challenge [text], filed by Governor Jan Brewer, argued the law makes state officials vulnerable to federal prosecution for implementing the law. The court ruled, however, that there was no legitimate threat of prosecution for officials who simply enforce the law and dismissed the complaint based on a motion filed by the ACLU, the US Justice Department and other individuals for lack of ripeness.

The act was challenged by Gov. Brewer in May after being passed as Proposition 203 [JURIST reports] in November 2010. The act legalizes the possession of up to two-and-a-half ounces of medical marijuana and up to 12 cannabis plants. The medical marijuana is only allowed for individuals with any of a set list of medical conditions including cancer, amyotrophic lateral sclerosis and AIDS who have gotten a recommendation from their physician and have registered with the Arizona Department of Health Services. Arizona is the fifteenth state to legalize medical marijuana.




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Israel ex-PM indicted on bribery charges
Dan Taglioli on January 5, 2012 12:15 PM ET

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[JURIST] Former Israeli prime minister Ehud Olmert was indicted Thursday on bribery charges over the construction of a luxury apartment complex called the Holyland towers. As Jerusalem's mayor from 1993 to 2003, Olmert, along with other city officials, allegedly accepted millions of dollars in bribes [Reuters report] to assure the approval of plans for Holyland, which dominates a Jerusalem hilltop and has attracted unrelenting criticism for its architecture. Specifically the 83-page indictment states that the project's developers, who also have been charged in the case, received zoning and tax breaks in return for the bribes. Olmert, already on trial over corruption accusations, has denied the latest charges. He has already pleaded not guilty in separate proceedings over allegations he took cash for favors and double-billed charities for airfare to attend overseas fundraisers while serving as a cabinet minister and mayor before he became prime minister in 2006. Olmert resigned as Israel's leader in September 2008, saying he wanted to clear his name, staying on as caretaker prime minister until March 2009 when Benjamin Netanyahu was sworn in. Olmert was officially named as a suspect [JURIST report] in the investigation in April 2010.

Olmert has been embroiled in accusations of scandal for much of his political career. He is already facing trial [JURIST report], the first of a former or current Israeli prime minister, for corruption and fraud charges that led to his resignation as prime minister. He is accused of illegally accepting cash contributions from an American businessman, double billing [JURIST reports] travel expenses to the state and charitable donors, and giving his former law partner access to state information. In April 2007, Olmert was investigated for improperly favoring his supporters [JURIST report] in distributing business grants during his time as trade minister. In January 2007, the Israeli Ministry of Justice announced plans to launch an investigation [JURIST report] into allegations that he promoted the interests of two business associates during the 2005 state sale of Bank Leumi [corporate website].




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Fifth Circuit hears arguments over Texas abortion law
Dan Taglioli on January 5, 2012 11:24 AM ET

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[JURIST] The US Court of Appeals for the Fifth Circuit [official website] Wednesday heard arguments in an appeal by the state of Texas to lift a lower court's preliminary injunction [order, PDF] against a state abortion law [HB 15 text] that requires doctors to show sonograms to patients before performing the procedure. The three-judge panel did not immediately rule on the state's request to lift the injunction, which Texas Solicitor General Jonathan Mitchell argued should be vacated as an abuse of discretion by the lower federal court. Center for Reproductive Rights (CRR) [advocacy website] attorney Julie Rikelman told the Fifth Circuit panel that the law exceeds the state's authority to regulate the medical profession in that the information in question is not medically necessary for the procedure. CRR had filed a challenge to the newly signed Texas law on behalf of a class of physicians that perform abortions, and in August US District Judge Sam Sparks ruled [JURIST reports] that several provisions of the state law violated the free-speech rights of abortion-performing doctors. The lower court enjoined the provisions of the law requiring physicians to provide, and women to hear, descriptions of the sonogram and fetal heartbeat, holding such provisions violated the First Amendment [Cornell LII backgrounder], and severed three sections of the law held to be unconstitutionally vague. Rikelman noted that other courts have temporarily blocked similar laws in Oklahoma and North Carolina after her group sued, and several other states have enacted less intrusive sonogram laws that make it optional for doctors to provide descriptions to patients. Mitchell argued that the injunction should be lifted on the grounds that the state's interest in protecting fetal life through reasonable regulation trumps free-speech claims. The state wants the entire suit dismissed without trial.

Texas is only one of many states that have recently enacted, and subsequently had to defend, laws restricting abortions. With courts analyzing these cases differently, the outcomes have varied. Regarding another case dealing with the intersection of state abortion laws and free speech rights, last month Scott Gaylord of Elon University School of Law wrote [JURIST op-ed] that a district court applied an outdated government speech test a month earlier when it issued an injunction [JURIST report] preventing North Carolina from allowing drivers to select "Choose Life" license plates. The court in that case ruled that "by authorizing the 'Choose Life' plate without also offering a pro-choice alternative, the State has engaged in impermissible viewpoint discrimination in violation of the First Amendment." In August the Arizona Court of Appeals [official website] ended a two-year injunction [JURIST report] on portions of a law that restricted abortion practices. The original injunction by the Maricopa County Superior Court [official website] held the following provisions as "undue burdens" on a woman's right to an abortion: prohibitions on anyone but a licensed physician performing an abortion; a requirement that women meet with the doctor personally 24 hours before an abortion (the injunction held that a phone call would suffice); that medical professionals have a right to refuse to perform even medically necessary abortions, provide certain contraceptives or the "morning after" pill; and a mandate that parents' consent forms allowing their child to get an abortion be notarized. The appeals court reinstated all of these stipulations, suggesting that the lower judge had applied "strict scrutiny" in error rather than an "undue burden" test. Planned Parenthood of Arizona [advocacy website], a party to the original suit, said the law's enactment will have a severe impact on women in the state, many of whom have to take day-trips to have abortions.




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Washington governor to introduce same-sex marriage legislation
Jerry Votava on January 5, 2012 10:20 AM ET

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[JURIST] Washington state Governor Chris Gregoire [official website] announced [press release] Wednesday that she plans to introduce legislation that would not deny marriage licenses to couples based on their sexual orientation and would permit same-sex marriages [JURIST news archive] to be performed in Washington. If the legislation is passed, Washington would be the seventh state in the nation to legalize gay marriage, including Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, New York and Washington, DC [JURIST reports]. Gregoire spoke [transcript] about the many reasons that she is advancing this legislation:
For all couples, a marriage license is very important. It gives them the right to enter into a marriage contract in which their legal interests, and those of their children if any, are protected by well-established law. ... Our gay and lesbian families face the same hurdles as heterosexual families—making ends meet, finding time for career and family, raising their children and saving for college.
Gregoire also equated comments that domestic partnerships being the same as marriage to the "separate but equal" discrimination arguments made in previous civil rights eras.

Gregoire has been a consistent advocate for gay rights [JURIST news archive] during her tenure as governor. In April she signed a bill [JURIST report] that recognized as legal same-sex marriage licenses from other states. In March 2007 Gregoire signed legislation [JURIST report] that recognized domestic partnership status for same-sex couples. Same-sex marriage remains a contentious issue even after the passage of similar laws in other states. The new same-sex marriage law in New York is currently being challenged [JURIST reports] in that state's court system.




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Federal judges reject West Virginia redistricting plan
Rebecca DiLeonardo on January 4, 2012 3:15 PM ET

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[JURIST] A panel of three judges in the US District Court for the Southern District of West Virginia [official website] ruled [opinion, PDF] 2-1 Tuesday that West Virginia's congressional redistricting plan, signed into law last August, is unconstitutional. The Jefferson County Commission [official website] brought suit in November to challenge the constitutionality of the plan, which created a disparity of more than 4,000 citizens between the largest and smallest of the three West Virginia districts. The court determined that the plan, which is nearly identical to the 1991 plan but for the movement of one county, focused too heavily on preserving old boundaries as opposed to equal population distribution. In his decision, Judge Robert Bruce King stated that "change is the essence of the apportionment process," and that it is necessary to address population changes in the plan in order to afford equal voting power to the citizens of West Virginia. The legislature has been given until January 17 to create a new plan.

Texas has also faced challenges to its redistricting plans. Last month, the US Supreme Court [official website] agreed [order list, PDF] to rule on three Texas redistricting plans [JURIST report]. The emergency appeal challenges an interim map drawn up by the US District Court for the Western District of Texas while a separate map drawn up by the state legislature is currently being challenged in the US District Court for the District of Columbia [official websites] for compliance with the Voting Rights Act [Cornell LII backgrounder]. The third case deals with the Texas state senate. The justices set one hour of argument for all three cases for January 9.




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Spain adopts strict anti-piracy law
Jamie Davis on January 4, 2012 2:02 PM ET

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[JURIST] The Spanish government has approved a new law that creates a government agency with the authority to force Internet service providers to block certain websites that are involved in pirating copyrighted material, reports said on Tuesday. Under the Sinde law [text, PDF, in Spanish], the new government agency will take claims of infringement [BBC report] against websites that have copyrighted material and will then determine whether to take action against the site. If the commission decides to take action, the legislation then provides that the case be referred to a judge who will make the final decision on whether the site should be shut down. Those opposing the new legislation argue that the law erodes the basic freedom of expression. The legislation was passed by the new ruling Partido Popular [party website, in Spanish] as one of its first acts since it came to power in November. The bill was originally considered by the prior government under Socialist rule, but was put on hold to be decided on later.

With the passage of the Sinde law, Spain joins other countries that have taken a strong stance against piracy. The US Congress is currently considering a similar bill known as the Stop Online Piracy Act, or SOPA [materials]. In July, the UK allowed the blocking of a file-sharing site [JURIST report]. The UK's High Court of Justice ruled for the Motion Picture Association (MPAA), requiring Internet provider British Telecom (BT) to block access to a file-sharing website, Newzbin2. The British Department for Business Innovation and Skills in 2009 proposed stricter sanctions against illegal file-sharing that would include restricting and suspending user Internet access. This eventually became the Digital Economy Act passed in 2010. It is currently under judicial review.




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Libya NTC publishes draft law for electing constitutional assembly
Alexandra Malatesta on January 4, 2012 11:05 AM ET

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[JURIST] The Libyan National Transitional Council (NTC) [official website; JURIST news archive] published a draft law Monday establishing guidelines for the election of the assembly that will create Libya's new constitution. The law would ban [AP report] any former members of the regime of deceased former dictator Muammar Gaddafi [BBC obituary; JURIST news archive] as well as those educated in his political manifesto, the Green Book [text, PDF]. This is the first step taken by the NTC in establishing a new democratic government after the fall of the 42-year dictator. The interim government faces several challenges including addressing and reconciling [Mail & Guardian report] with the significant portion of Libyans involved in Gaddafi's regime and those who fought in regional militias and revolutionary groups.

The NTC has been gaining recognition among other countries, as well as the World Bank [JURIST report]. In September the NTC vowed to investigate allegations of human rights after Amnesty International (AI) [advocacy website] published a report [JURIST report] alleging that both sides of the Libya conflict [JURIST backgrounder] are responsible for human rights abuses and warning the NTC to act quickly to investigate these allegations. Also that month the NTC assured world leaders that Libya will be a society of tolerance and respect [JURIST report] for the rule of law. During a meeting [BBC report] in Paris chaired by French President Nicolas Sarkozy, NTC leader Mustafa Abdel Jalil [BBC profiles] vowed to administer elections and draft a new constitution for Libya within 18 months. However, allegations of war crimes and human rights violations have been widespread during the Libya conflict.




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Ecuador court upholds multi-billion dollar fine against Chevron
Alexandra Malatesta on January 4, 2012 10:16 AM ET

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[JURIST] A three-judge panel of the Provincial Court of Justice of Sucumbios in Lago Agrio, Ecuador, on Tuesday upheld [judgment, PDF, in Spanish] a multi-billion dollar fine against Chevron [corporate website] for polluting the Amazon Jungle in the 1980s. The USD $18 billion fine, one of the largest in the history of environmental contamination suits, was originally set at $8.6 billion [JURIST report] but was more than doubled for Chevron's refusal to pay "moral reparations" [BBC report] to the Ecuadorian government, as required by the original ruling [Reuters report]. As Chevron officials condemn [press release] the decision as fraudulent, unenforceable and corrupted by the politicization of Ecuador's judiciary, the corporation is pursuing private recourse through Permanent Court of Arbitration [official website] in The Hague. The corporation is also calling for a criminal investigation [press release] into the judge and plaintiffs' lawyers in the case. Meanwhile, the Amazon Defense Coalition [advocacy website], plaintiffs in the suit, have responded that the judgment is a reaffirmation of how Chevron's greed and criminal misconduct [press release] in dumping billions of gallons of toxic waste into the river has led to death and disease.

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




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Turkish ex-president faces possible life sentence for 1980 military coup
Jamie Davis on January 3, 2012 2:36 PM ET

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[JURIST] Former Turkish president Kenan Evren [official profile] and former air force commander Tahsin Sahinkaya have been charged with crimes against the state in connection with a 1980 military coup and could face life imprisonment, according to Tuesday reports. Evren was head of the 1980 military coup before he became Turkey's president in 1982 and was first questioned by authorities [AA report] in June after the Turkish constitution was amended in 2010 in order to remove coup leaders' immunity. Evren and Sahinkaya are the only two generals alive out of the five men [AFP report] who are believed to have planned the 1980 military coup. The court must decide within 15 days whether it will accept the indictment and hold a trial or dismiss it.

In November, the trial began for a different coup plot for 13 Turkish journalists who were accused of formulating a plan [JURIST report] to overthrow the Islamic government in Turkey. 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"), 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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Tunisia tries ex-president in absentia for killings of protesters
Sung Un Kim on January 3, 2012 2:25 PM ET

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[JURIST] Former Tunisian president Zine al-Abidine Ben Ali [BBC profile; JURIST news archive] went on trial in absentia Tuesday before a military court. The trial will focus on who ordered snipers to kill 41 protesters during last year's Tunisian revolution which resulted in the death of more than 200 protesters. Along with Ben Ali, numerous former senior officials were named as defendants in this trial. Among them was the former director general of public security, Lotfi Zwawi, who on Monday denied any knowledge of the death of the protesters. The former Tunisian president and his wife have been already sentenced to 35 years in prison [JURIST report] and fined USD $65.6 million in June after the court found them guilty in absentia of theft and unlawful possession of money and jewelry. The ruling came hours after the trial began [JURIST report] for charges including murder and conspiracy to trafficking and drug use. The ex-president has denied [JURIST report] the numerous charges. He left the office [JURIST report] and the country in January to Saudi Arabia during the protests. But Ben Ali, through his attorney, stated that he left because he was "duped" into leaving [AFP report] the capital Tunis.

Tunisian Justice Minister Lazhar Karoui Chebbi [profile, in French] announced [JURIST report] in April that Ben Ali had been charged with 18 offenses. The announcement came after Amnesty International (AI) and Human Rights Watch [advocacy websites] urged Tunisia to investigate [JURIST report] the allegations of brutality against protesters and to end such police violence [JURIST report]. The Tunisian criminal court convicted [JURIST report] in November a nephew of Ben Ali, Imed Trabelsi, for 18 years in prison for writing over USD $399 million in bad checks. He was already in prison when the conviction took place for drug possession, money laundering and embezzlement which he appealed but lost [JURIST report].




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Egypt prosecution begins case against ex-president Mubarak
Sung Un Kim on January 3, 2012 1:57 PM ET

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[JURIST] The five-member prosecution team on Tuesday began presenting its case against former Egyptian president Hosni Mubarak [Al Jazeera profile; JURIST news archive]. Mubarak is facing charges of complicity by ordering the killings of at least 840 protesters [JURIST report] during the Egyptian revolution [JURIST news archive] early last year after which Mubarak stepped down from the office [JURIST report]. Tuesday's session, which lasted 90 minutes, was the first of three sessions in which the prosecution will present its case to the court. The head of the prosecutor team, Mustapha Suleiman, delivered the opening statement [Reuters report] which did not deal with the charge against Mubarak of ordering the killings of the protesters. The session was adjourned by the presiding judge, Ahmed Refaat, until Wednesday when another member of the prosecution was to present the case. Along with Mubarak, his two sons, Gamal and Alaa Mubarak, the former interior minister and senior police officers are also facing charges of corruption and involvement in the killings of the protesters.

Mubarak's trial started in August [JURIST report] and has been making slow progress. The trial was resumed last week by the Egyptian court after a two-month adjournment [JURIST reports] which allowed the court time to rule on a motion made by lawyers representing the victims' families to have the three-judge panel in the case removed. The victims' families argued that were not given enough time to question the Field Marshal Mohamed Hussein Tantawi [GlobalSecurity profile], head of the Supreme Council of the Armed Forces (SCAF) [NYT backgrounder], who testified against Mubarak [JURIST report] in a closed session in September, but left early and refused to be cross-examined by counsel of the victims. In December the court also rejected the prosecution's motion [JURIST report] for a new judge and fined the prosecution for making such request. The motion was based on the allegation that Judge Refaat was showing bias in favor of Mubarak [AFP report].




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Daughter of former Iran president sentenced to six months
Jamie Davis on January 3, 2012 1:45 PM ET

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[JURIST] The daughter of former Iranian president Ali Akbar Hashemi Rafsanjani [BBC profile] was sentenced on Tuesday to six months in prison after being convicted of spreading propaganda against the country's current government. Faezeh Hashemi, who is a former member of Iran's Parliament [official website, in Persian], is also forbidden from being a member of any political party [Guardian report] and must refrain from any "media or online activities" for five years. Hashemi's conviction stems from her activities during and after the 2009 Iran elections [BBC report] in which she supported the candidate opposing current Iranian President Mahmoud Ahmadinejad [BBC profile] and participated in protests contesting the election results. In an interview [text] Hashemi gave to Roozonline, she accused supporters of the current Iranian government of harassing her. The interview is believed to have been what prompted the current regime to impose the six-month prison sentence. Hashemi has 20 days to appeal her sentence.

Hashemi is one of several opposition figures that have been detained and charged in connection with the wave of civil unrest following the disputed re-election of Ahmadinejad. Last week Iran's Islamic Revolutionary Court sentenced opposition figure [JURIST report] and former Iranian foreign minister Ebrahim Yazdi to eight years in prison for attempting to act against national security. Yazdi was also banned from civic activities for five years in the closed-door trial reportedly held in early November. In August Tehran prosecutor Abbas Jafari-Dolatabadi said that approximately 100 people imprisoned for their participation in the massive 2009 presidential election protests have been pardoned and released [JURIST report] by Iran's supreme leader Ayatollah Ali Khamenei [official profile]. In March Iranian opposition leaders Mir-Hossein Mousavi [BBC profile; JURIST news archive] and Mehdi Karroubi [NYT profile; JURIST news archive] and their wives were arrested and jailed [JURIST report].




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Israel lawmakers approve new rules for selecting Supreme Court justices
Alexandra Malatesta on January 3, 2012 11:07 AM ET

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[JURIST] The Israeli Knesset [official website] passed a new law on Tuesday that changes the rules governing the selection of Supreme Court [official website] justices. The contentious law has been criticized [AP report] for undermining the independence of the judiciary in an effort to further a conservative judge favored by the government. Under the old law, Supreme Court Justice Asher Grunis would have been precluded [Haaretz report] from standing for chief justice because requirements that the chief justice be able to serve for three years before reaching the mandatory retirement age of 70. The new law changes that to two years and would allow Grunis to become chief justice. Critics also claim that a separate bill passed by a legislative panel would allow lawmakers to stack the Supreme Court judicial selection committee. Many fear the new laws will influence judicial decisions, impede upon the rights of the press and be used to harass liberal groups.

The power of the Israel Supreme Court was restricted [JURIST report] in 2008 when a bill was passed granting the Knesset authority to revise laws overturned by the court. The controversial measure, proposed [JURIST report] in 2007 by Israeli Justice Minister Daniel Friedmann provided the first statutory guide on the Supreme Court's annulment power. That power was interpreted to reach all Knesset-passed measures deemed to contravene one of the Basic Laws [text], the bill reduced that scope to allow Supreme Court annulment only of those laws contravening the Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation [text]. The proposal also granted the Knesset authority to revise laws overturned by the Supreme Court, thereby renewing those laws' validity. In those cases, the Knesset could overturn a Supreme Court ruling with an ordinary one-round of voting rather than the 61-vote majority in the 120-member body in three rounds of voting currently required to overturn the Supreme Court.




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Tens of thousands protest Hungary constitution
Alexandra Malatesta on January 3, 2012 10:17 AM ET

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[JURIST] Tens of thousands of protesters gathered outside of the Hungarian State Opera on Monday to protest the the country's controversial new constitution, which took effect January 1. A gala was being held to celebrate the new constitution, which the protesters condemned as hypocritical [AP report]. Opponents have criticized the constitution as giving the government too much power over the media, economy and religion in violation of international human rights laws. They claim that the new constitution, passed by two-thirds of the Parliament [official website], has eroded the country's democratic checks and balances. The Hungarian government responded that the new constitution, passed in April, was long overdue and embodies national and European values.

Hungary's controversial news laws have been the source of much criticism over the past year. In December Hungary's Constitutional Court [official website, in Hungarian] struck down [JURIST report] certain provisions of the country's recently passed media law as an unconstitutional restraint on press freedom. The court also struck down a law regulating religious organizations [JURIST report]. In April Hungarian President Pal Schmitt signed into law the new constitution [JURIST report] amid concern from civil society leaders and opposition politicians that the document contravenes European human rights principles. According to Human Rights Watch [advocacy website], the new constitution "enshrines discrimination" and jeopardizes the rights of people with disabilities, women and LGBT people.




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State laws that took effect New Year's day range from immigration to cell phones
Sarah Posner on January 2, 2012 2:04 PM ET

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[JURIST] On Sunday, January 1, 2012, a number of new state laws took effect ranging from abortion, gay rights, immigration and more. California became the first state to require public schools to teach the positive contributions of gays and lesbians [AP report], and added individuals with disabilities to the list of people whose contributions are to be included in California and US history lessons. In addition, the first part of the California Dream Act took effect on Sunday which allows students who entered the country illegally as children to obtain private financial aid to attend public colleges in California. The second part of the act, set to take effect on January 1, 2013, will allow illegal immigrants to obtain state funded aid to attend state universities. In contrast, a new South Carolina law [AP report] will require employers to first consult a federal database before hiring employees to ensure that workers are in the country legally. Laws allowing same-sex couples to enter into civil unions [Baltimore Sun report] also took effect in Delaware and Hawaii.

In Alabama, a tough immigration law [AP report] requires all employees doing business with a government entity to use the E-Verify federal system to check the eligibility of all employees in the country. A similar law in Georgia took effect to require business with 500 or more employees to use E-Verify to ensure all employees are legally in the country. In New Hampshire, a law took effect requiring girls to tell their parents or a judge before getting an abortion. A new Oregon law eliminated the employment related exemption for the ban on cell phones [AP report] while driving. The exemption in place permitted the use of cell phones if the device was necessary for employment purposes. Also, a new Oregon law increases the penalty for driving under the influence, making even first time offenses more costly. Washington has a new campaign finance law [AP report] that makes it more difficult to obscure the source of funding for political campaigns.




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Fiji to lift state of emergency laws
John Paul Putney on January 2, 2012 1:14 PM ET

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[JURIST] Fiji's military ruler, Commodore Josaia Voreqe "Frank" Bainimarama [BBC profile] announced [text] Sunday that the nation's state of emergency laws will be lifted this week to facilitate a nationwide consultation process for a new constitution. The announcement was cautiously welcomed by longtime regional critics [Sydney Morning Herald report], Australia and New Zealand. Local opposition politicians and critics — often victims of harsh censorship regulations — have not yet commented [AFP report]. Skepticism remains about military involvement [VOA report] in the election process Bainimarama promised to hold in 2014. Although the Commodore did not indicate what laws would replace the emergency laws enforced through Public Emergency Regulations (PER) [text, PDF], he warned "public order, protecting the vulnerable and safeguarding the economy will always be paramount." Bainimarama also indicated:
There are certain features of the new constitution that will be non-negotiable. The constitution must establish a government that is founded on an electoral system that guarantees equal suffrage - a truly democratic system based on the principle of one person, one vote, one value; We will not have a system that will classify Fijians based on ethnicity; and, Our young men and women, those 18 years old must have the right to vote.
It remains unclear what effect, if any, lifting the PER — which requires official approval for meetings of more than three people — will have on the military government's Media Decree [The Australian report; text, PDF].

Fiji's military government has faced increasing international criticism since Bainimarama came to power in a bloodless coup in 2006 [JURIST report]. In October 2010, Mahendra Chaudry, a former prime minister who lost power in a coup in 2000, and the current opposition leader, were arrested by military authorities [JURIST report] for allegedly holding public meetings in violation of the PER. In April 2010, international rights organizations voiced concern about the Media Decree [JURIST report] the Fijian government later approved, which provides for significant fines, up to five years' imprisonment of journalists, and requires registration and local ownership of mass media entities. In September 2009, the Commonwealth of Nations suspended Fiji [JURIST report] from its organization because it failed to meet the deadline for reinstating a constitutional democracy and opening a national dialogue. In July 2009, Bainimarama announced plans to establish a new constitution by September 2013 [JURIST report] prior to the elections planned for September 2014. In May 2009, the Pacific Islands Forum suspended Fiji's membership [JURIST report] in the 16-nation bloc after Fiji's current military government failed to meet a deadline to schedule elections.




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Myanmar reduces prisoners' sentences on humanitarian grounds
Max Slater on January 2, 2012 12:06 PM ET

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[JURIST] Myanmar President Thein Sein [BBC backgrounder] signed a clemency order on Monday that shortens sentences for many prisoners on humanitarian grounds in celebration of Myanmar's independence day. The presidential order commuted death sentences to life imprisonment [AP report], reduced sentences of over 30 years to 30 years, those between 20 and 30 years were reduced to 20 years, and sentences of fewer than 20 years were cut by one-fourth. The announcement fell short of the anticipated clemency for political dissidents, as urged in an open letter [text] published by the Myanmar National Human Rights Commission (MNHRC). Myanmar's government proclaimed [AFP report] that the clemency order was issued on the grounds of national solidarity and humanitarianism. It remains to be seen whether or not political prisoners are included within the scope of the clemency order. Releases are expected to begin Tuesday.

Myanmar's nominally civilian government has implemented numerous political reforms since winning the first elections held in 20 years in March 2011. Earlier in December, the government approved a bill [JURIST report] that would give citizens the right to conduct peaceful protests, provided that they receive prior governmental authorization. In October, Sein released over 200 political prisoners [JURIST report]. In September, Myanmar's government created the MNHRC [JURIST report] to safeguard citizens' constitutional rights. Myanmar authorities released [JURIST report] pro-democracy leader Aung San Suu Kyi [BBC profile; JURIST news archive], ending her almost eight years under house arrest.




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Egypt government denies crackdown on NGOs
Sarah Posner on January 1, 2012 3:21 PM ET

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[JURIST] The Egyptian government on Sunday denied cracking down on non-governmental organizations (NGOs) that are advocating democracy in Egypt. The government's response came amid accusations [Reuters report] by various human rights groups that Egypt was trying to silence the military council's vocal opposition. Allegations against the Egyptian government for their treatment of the opposition came after Egypt raided the offices of 17 different NGOs last week. Authorities state that the raid was part of an investigation of illegal political funding activities. The US expressed that they may reconsider the $1.3 billion in military aid given to Egypt annually if the raids against NGOs do not stop. Responding to criticism, the Egyptian government on Friday agreed to cease its crackdowns [JURIST report] on NGOs that advocate for democracy in Egypt, according to the US Department of State (DOS) [official website]. Egyptian officials assured the US [BBC report] that it would return all property and assets seized in the raids to the NGOs.

Despite Egypt's assurances the US said that the raids on NGOs did not positively reflect the Egyptian government's commitment to democracy. The raids resulted from concerns by the Egyptian government over how the pro-democracy NGOs were funded. Egypt's military proclaimed that it would not tolerate foreign interference [Reuters report] in the nation's affairs. The US hinted that the raids may induce increased scrutiny over the $1.3 billion in military aid that the US sends to Egypt annually. Egyptian crackdowns against protesters have drawn significant criticism recently. On Thursday, Egyptian prosecutors and police raided the offices of 17 pro-democracy groups. Two weeks ago, the UN High Commissioner for Human Rights [official website] Navi Pillay [official profile] condemned [JURIST report] a brutal suppression of protesters that led to 11 deaths and over 500 injuries.




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Chief justice responds to recusal requests in year-end report
Sarah Posner on January 1, 2012 2:40 PM ET

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[JURIST] Chief Justice John Roberts on Saturday in his year-end report [text, PDF] expressed complete confidence in the ability of the US Supreme Court [official website] justices to recuse themselves from cases with a personal interest at stake. Roberts' comments came amid controversy over whether two justices on the Court should recuse themselves [AP report] when the Supreme Court decides the constitutionality [SCOTUS blog] of Patient Protection and Affordable Care Act (PPACA) [text; JURIST backgrounder] this term. Republicans have called on Justice Elena Kagan to step off the case based on her work as solicitor general under the Obama administration while Democrats insist that Justice Clarence Thomas not participate in the case due to his wife's work with various groups opposing this health care reform. Lawmakers criticize the US Supreme Court's ethical practices for employing less strict ethical standards than other federal courts. Though not directly mentioning the health care case, Roberts states in the report:
I have complete confidence in the capability of my colleagues to determine when recusal is warranted. They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process. I know that they each give careful consideration to any recusal questions that arise in the course of their judicial duties. We are all deeply committed to the common interest in preserving the Court's vital role as an impartial tribunal governed by the rule of law.
The Court is expected to rule on the constitutionality of the PPACA by the end of June.

In November, the Supreme Court agreed to hear arguments [JURIST report] on the constitutionality of the PPACA. 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]. 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 consolidated the cases of National Federation of Independent Business v. Sebelius [docket] and Florida v. Department of Health and Human Services [docket] 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. 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.




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Obama signs controversial defense bill into law
Max Slater on January 1, 2012 11:11 AM ET

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[JURIST] US President Barack Obama [official website] on Saturday signed [statement] the National Defense Authorization Act for 2012 (NDAA) [SB 1867, pdf] into law despite having reservations over certain provisions in the bill. The contentious legislation contains a clause that allows the president to use "all necessary and appropriate force" to detain persons suspected of terrorism. Obama stated that while he supports the bill as a whole, he does not agree with everything in it, specifically the provisions regulating the detention, interrogation and prosecution of suspected terrorists. Obama indicated that his administration's success against al Qaeda [JURIST news archive] and affiliated terrorist organizations was based on flexibility which allows counterterrorism professionals to adapt to changing circumstances and utilize a broad range of practices to protect the American public. According to Obama, his administration will interpret and implement the controversial provisions in a manner which will provide the maximum measure of flexibility. Specifically, Obama noted that his administration will interpret the section requiring military custody for a narrow category of non-citizen detainees as allowing the executive branch to waive the military custody requirement when it would be in the best interest of national security. The American Civil Liberties Union (ACLU) [advocacy website] vigorously chastised the President [statement] stating that the statute is dangerous due to its lack of temporal or geographic limitations, and due to the fact that it could be used in the future to detain individuals captured "far from any battlefield."

Both houses of Congress reached an agreement [JURIST report] on the language of the NDAA's most controversial sections in mid-December. Earlier in December, the Senate Armed Services Committee (SASC) [official website] unanimously approved [JURIST report] a provision in the NDAA that gives the military complete control and custody over terror suspects. Shortly before the SASC's decision, the ACLU issued a report [pdf] claiming that the US is