JURIST - Paper Chase: Saturday, January 7, 2012

[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.

[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.

[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.

[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."