February 2012 Archives


Supreme Court rules state tort law claims preempted by federal locomotive statute
Maureen Cosgrove on February 29, 2012 2:19 PM ET

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[JURIST] The US Supreme Court [official website] ruled [opinion, PDF] Wednesday in Kurns v. Railroad Friction Products Corp. [SCOTUSblog backgrounder] that the federal Locomotive Inspection Act (LIA) [49 USC § 20701] preempts state-law design-defect and failure-to-warn claims because these claims fall within the field of locomotive equipment regulation preempted by the act. The petitioner, George Corson, contracted mesothelioma and passed away after working as a welder and mechanic on the braking system of trains which contained asbestos. Corson had urged the court [JURIST report] to construe the LIA narrowly as applying to the safety of locomotives in use on railroad lines and not applying to hazards to mechanics conducting repairs. The court relied on its decision in Napier v. Atlantic Coast Line R. Co. [text] to hold that the petitioner's claims were preempted pursuant to the field preemption doctrine, which applies "when the scope of a [federal] statute indicates that Congress intended federal law to occupy a field exclusively." The court rejected the petitioner's arguments that the Federal Railroad Safety Act of 1970 (FRSA) altered the LIA's preemptive scope and that the failure-to-warn claim could prevail even if the design-defect claim was preempted.

Justice Elena Kagan, in her concurring opinion, concluded that the design-defect and failure-to-warn claims were preempted by the LIA because "Napier recognized the federal agency's delegated authority over "the design, the construction and the material of every part of the locomotive."" Justice Sonia Sotomayor concurred in part and dissented in part, and was joined by Justices Stephen Breyer and Ruth Bader Ginsburg. Though they agreed that the design-defect claim was preempted by the LIA, they concluded that the failure-to-warn claim was not preempted because the field defined in Napier differently today because recent cases have regularly rejected the field preemption doctrine when statutory language does not contain an express preemption clause.




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US House approves bill restricting eminent domain
Sarah Posner on February 29, 2012 1:56 PM ET

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[JURIST] The US House of Representatives [official website] approved legislation [HR 1443 text] on Tuesday restricting the ability of states to take control over private property for public use under eminent domain [Cornell LII backgrounder; JURIST news archive]. The Private Property Rights Protection Act of 2012 [materials] would effectively overturn the 2005 US Supreme Court [official website] decision in Kelo v. City of New London [text], authored by retired justice John Paul Stevens. The Kelo case drew sharp criticism, particularly from Republicans who believed the court disregarded the traditional standard for "public use." The proposed act would prevent states from seizing private property for the purpose of economic development and create a private cause of action for property owners. The act reads:
No State or political subdivision of a State shall exercise its power of eminent domain, or allow the exercise of such power by any person or entity to which such power has been delegated, over property to be used for economic development or over property that is used for economic development within 7 years after that exercise, if that State or political subdivision receives Federal economic development funds during any fiscal year in which the property is so used or intended to be used.
The White House has remained silent regarding its position on the proposed legislation, and the Senate has yet to decide whether to consider the act.

The power of the government to take private property and convert it into public use is a doctrine long held. States can enact limitations on government takings to further citizen protections flowing from the Fifth Amendment. In November, Mississippi voters overwhelmingly approved an amendment to the state constitution limiting the power of eminent domain [JURIST report] in the state. The approved measure would prohibit, with certain exceptions, state and local government from conveying acquired private property to other persons or private businesses for a period of 10 years after acquisition. In 2010, voters in Nevada rejected a ballot initiative [JURIST report] that would have expanded state power by defining five exceptions to an existing general prohibition against exercising eminent domain to transfer property from one private party to another.




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Top al Qaeda official reportedly arrested at Egypt airport
Max Slater on February 29, 2012 12:27 PM ET

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[JURIST] Former al Qaeda [JURIST news archive] military commander Saif al-Adel [Telegraph profile] was arrested at an airport in Cairo [Al Ahram report] on Tuesday, according to the Egyptian media. Egyptian security officials detained al-Adel upon his arrival after noticing that his name appeared on the passenger list on a flight from Pakistan. Before he was taken away for questioning, however, al-Adel contended that Egyptian officials had mistaken his identity [BBC report], and that he was not the al Qaeda official that authorities sought. Doubts have since emerged over whether the man detained on Tuesday is actually al-Adel. The Christian Science Monitor reported [text] that the man arrested by Egyptian officials was probably an Egyptian militant who shares a similar alias to al-Adel. al-Adel has been on the FBI Most Wanted Terrorists Lists [materials] since 1998 for his connection with the August 7, 1998, bombings of US embassies in Nairobi, Kenya and Dar Es Salaam, Tanzania. The US Department of State [official website] is offering a five million dollar reward for his capture.

In September a CIA drone strike in Yemen killed senior al Qaeda leader [JURIST report] and US citizen Anwar al-Awlaqi [BBC profile; JURIST news archive]. The strike marked the US government's most successful attack against al Qaeda since the raid leading to the death of Osama bin Laden [JURIST report] in Pakistan last May. In June al Qaeda operative Fazul Abdullah Mohammed was killed [JURIST report] by security forces at a checkpoint in Somalia. Mohammed was on the FBI Most Wanted Terrorists Lists [materials] for his involvement in the 1998 US embassy bombings. Al-Adel, who has also gone by the alias Mohammed Ibrahim Makkawi, has drawn a great deal of international interest since the US embassy bombings. In May, following Osama Bin-Laden's death, al-Adel operated as the interim head of Al Qaeda [Telegraph report]. In March 2011, al-Adel published a series of letters [materials] covering the Arab Spring [JURIST news archive] uprisings.




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Egypt judges withdraw from NGO case
Rebecca DiLeonardo on February 29, 2012 12:18 PM ET

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[JURIST] All three judges responsible for adjudicating the criminal prosecution of 43 non-governmental organization (NGO) employees withdrew from the case on Tuesday. It is not clear why the judges chose to withdraw [AP report], but Egyptian lawyer and rights activist Ahmed Seif al-Islam suggested it could be a result of political pressure. The case, tried in a Cairo Criminal Court, involves individuals that have been charged with promoting democracy [JURIST report] in Egypt without proper documentation and through the use of illegal funds. The suspects, including 16 Americans, 27 other foreigners and Egyptians, are employees of NGOs that advocate democracy in Egypt. The case has strained Egypt's relationship with the US. Earlier this month, US Ambassador to the UN Susan Rice [official profile] called on Egypt to release the suspects [Politico report], and US Secretary of State Hillary Clinton [official profile] threatened to reconsider the $1.3 billion in annual aid [Reuters report] given to Egypt. On Wednesday, however, Clinton said she believed the issue would be resolved in the near future [Reuters report]. An Egyptian court official said Tuesday that new judges will be assigned to try the NGO case. If convicted, the suspects face up to five years in prison.

The Egyptian government has faced criticism recently for its persecution of NGO employees. On Sunday, A Cairo Criminal Court judge adjourned the trial until April [JURIST report] following the first day of the trial. None of the defendants from America or Europe was present for the first day of trial. In an interview [text], Clinton said the US is "working with the highest levels of the existing Egyptian authorities and ... hoping to get this resolved." Earlier this month, Egyptian investigative judges referred the NGO case to a criminal court in Cairo [JURIST report]. In January, the Egyptian government denied cracking down on NGOs [JURIST report] amid accusations by various human rights groups that Egypt was trying to silence the military council's vocal opposition. In December the Egyptian government agreed to cease its raids of NGOs [JURIST report], after the US expressed concern about Egypt's approach toward NGO activity. Egyptian police raided the offices of 17 pro-democracy and human rights groups [Reuters report] in December, citing foreign funding as a main concern.




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Guantanamo Bay prisoner pleads guilty to terror charges
Saheli Chakrabarty on February 29, 2012 12:08 PM ET

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[JURIST] Majid Khan [GlobalSecurity profile], a Guantanamo Bay [JURIST backgrounder] prisoner who is linked with al Qaeda, pleaded guilty [text, PDF] on Wednesday to five terror charges including conspiracy, attempted murder and murder. Per his plea bargain, Khan must testify against fellow "high value" prisoners who are alleged to have been involved in the 9/11 terrorist attacks [JURIST backgrounder]. The list of detainees against whom Khan will testify includes Khalid Sheikh Mohammed [BBC profile], one of the alleged designers of the 9/11 attacks, and others who are also believed to have been involved. In return for his cooperation Khan will get a reduced sentence of up to 25 years in prison, rather than life in prison, which he previously faced. Khan stipulated [text, PDF] to aiding in the 2003 terror attacks in Jakarta, Indonesia, and conspiring to carry out other terrorist activities, including the attempted assassination of former Pakistani President Pervez Musharraf [BBC profile; JURIST news archive]. Khan is set to be sentenced in 2016, giving him time to testify at other military trials. This is the first agreement offered to a Guantanamo detainee that guarantees freedom in exchange for testimony.

Khan was charged with war crimes, including murder, attempted murder, spying and providing material support for terrorism. Before being transferred to Guantanamo in 2006, both Khan's father and Khan's lawyer [JURIST reports] claimed in 2007 that the detainee had been subject to "state-sanctioned" torture while being held in secret CIA prisons. Khan was denied access to civilian legal counsel [JURIST report] by a federal judge in 2006. Gitanjali Gutierrez, a Guantanamo Global Justice Initiative Attorney from the Center for Constitutional Rights [official website] criticized the US government [JURIST comment] in 2006 for prohibiting Kahn from sharing certain classified information with his counsel. Khan was captured in Pakistan in March 2003 and held in CIA prisons until he and 13 other high-profile detainees, including Sheikh Mohammed, were transferred to the US prison [DNI profiles, PDF; BBC profiles] at Guantanamo Bay, Cuba.




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Federal court issues new Texas voting district maps
Jennie Ryan on February 29, 2012 11:01 AM ET

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[JURIST] A panel of three judges in the US District Court for the Western District of Texas [official website] on Tuesday issued new voting maps [materials] for use in the 2012 elections. The new maps were issued after the US Supreme Court [official website] rejected [JURIST report] Texas's interim redistricting maps in an emergency appeal [JURIST report] filed to challenge an interim map drawn up by the US District Court for the Western District of Texas. The Supreme Court rejected the initial interim maps, finding that, "it is unclear whether the District Court for the Western District of Texas followed the appropriate standards." State Attorney General Greg Abbott [official website] released a statement [press release] calling the new maps a "substantial improvement" and stating that the "new interim maps more accurately reflect the decisions of elected Texas legislators" as per the requirement of the Supreme Court. The new maps clear the way for the Texas primary election which has been delayed twice. The tentative date for the primary has been set [NYT report] for May 29, but, if there is an appeal of the new maps the date could be pushed back once again.

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 Voting Rights Act (VRA) [Cornell LII backgrounder], 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 was 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 month.




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Supreme Court hears arguments on corporate liability for torture overseas
Dan Taglioli on February 29, 2012 10:51 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 Kiobel v. Royal Dutch Petroleum Co. [transcript; JURIST report], the court heard arguments on whether three oil companies are immune from US lawsuits under the Alien Tort Statute of 1789 (ATS) [text] for alleged torture and international law violations that took place overseas. International law does not address corporations in defining who can be sued for human rights abuses. While accepting that international law is the proper authority to define human rights violations, the petitioners, Nigerian plaintiffs suing foreign-based oil companies, argued that domestic US common law should fill in the blank in ATS over who could actually be sued for such atrocities. The US government sided with the petitioners, with Deputy Solicitor General Edwin Kneedler providing the additional argument that international law does not independently foreclose foreign corporate liability the way that it immunizes a foreign government from liability for official wrongdoings. The respondent oil companies argued that international law is wholly controlling in such a situation and that domestic US common law has no bearing on the proceedings. Respondents pressed the fact that not only does international law not recognize corporate responsibility for the alleged offenses, but the world community has never recognized corporate liability for the misdeeds of individuals: "No other nation in the world permits its court to exercise universal civil jurisdiction over alleged extraterritorial human rights abuses to which the nation has no connection." While the issue in the case was supposed to focus on "the narrow issue of whether a corporation can ever be held liable for violating fundamental human rights norms under the Alien Tort Statute," the court frequently pushed petitioners on the specific point of whether Congress intended ATS to permit suits by aliens against aliens for overseas acts.

The court also heard arguments for a similar case, Mohamad v. Palestinian Authority [transcript], in which the court will decide whether political organizations including the Palestinian Authority and the Palestine Liberation Organization are immune from liability under the Torture Victims Protection Act of 1992 (TVPA) [text]. As in Kiobel, the plaintiffs in this case allege human rights violations against an entity other than an individual person. The TVPA allows lawsuits to be brought in US courts against "any individual who, under actual or apparent authority, or color of law, of any foreign nation" subjects another individual to torture. The petitioners argued that, unlike Kiobel, there is no issue as to whether "Congress expressly created the cause of action at issue in a statute" because "in every single other Federal court statute that Congress has ever enacted, it has provided for organizational liability." Respondents argued that the petitioners' argument is merely an "attempt to inject ambiguity into what is a very unambiguous term in US legal usage by referring ... to a supposed subtle definition of 'individual' in international law." Respondents argued that "individual" is not a term of art with specialized meaning in international law that would differentiate its usage is US law, and that Congress was proceeding incrementally in enacting liability under the statute, limiting its reach short of imposing secondary liability on a class of institutions such as political organizations.




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UK urges changes to the European human rights convention
Katherine Getty on February 29, 2012 10:33 AM ET

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[JURIST] The UK has begun circulating a proposal for changes to the European Convention on Human Rights [text], which was leaked to the press on Tuesday. The proposal, entitled the Brighton Declaration [text, PDF], began circulating to member states last week. It is expected to be voted on in April when members states meet to discuss the future of the European Court of Human Rights (ECHR) [official website]. The proposal calls for a number of amendments [BBC report] to the convention with the most notable allowing the court to issue advisory opinions. Additionally, the would allow nations greater leeway in applying the court's decisions on their citizens. This proposed amendment is directly in line with a statement [JURIST report] by the UK's highest judge in October that found ECHR decisions are not binding. Due to the controversial nature of the amendments, unanimous approval from all 46 member states must be received before the proposal can go through. The government's actions were not unexpected, though, because members of the government have promised for years to use the rotation of the court's presidency as a platform for reform.

Earlier this month a UK think tank urged the country to withdraw [JURIST report] from the ECHR altogether in favor of a national high court. Tensions between the court and the country have been high for years due to the UK's lack of agreement with some of the court's rulings. In 2005 the court found that British prisoners should be given the right to vote [JURIST report]. The ECHR and the UK have also clashed over the issue of extradition of terror suspects. In February 2011 the UK government's independent reviewer of terror laws published a report [JURIST report] saying that rulings from the ECHR made it difficult to remove foreign terror suspects from Britain. The ECHR refused to grant the government's request that a terror suspect be required to show that it is more likely than not that he would be subject to ill-treatment. The ruling lowered the suspect's burden of proving that he would be faced with ill-treatment upon returning to his home country. In July 2008, the ECHR stayed the extradition of four terrorism suspects [JURIST report] from the UK to the US, holding that potential punishment could violate Convention's provisions on the prohibition of torture and inhumane or degrading treatment.




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Virginia senate approves bill requiring ultrasound before abortion
Jerry Votava on February 29, 2012 8:44 AM ET

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[JURIST] The Virginia Senate [official website] approved a bill [text] on Tuesday that would require a woman seeking an abortion [JURIST news archive] to have an ultrasound before the procedure. The bill was passed [JURIST report] by the Virginia House of Delegates [official website], and is a scaled-back version of a similar bill [text] that was passed [JURIST report] earlier this month. The current version of the bill removes the requirement for a transvaginal ultrasound to be performed, but continues to require a traditional transabdominal ultrasound. The bill retains the requirement that the women be provided with information regarding the gestational age and physical development of the fetus. In addition to altering the ultrasound requirements, the updated legislation redacts the portion of the previous version that would have required the medical professional to give the woman the option of listening to the fetal heart tone. The contentious bill was narrowly approved [results] by a margin of 21 to 19, with the vote split relatively along party lines.

Virignia is not the first state to pass such legislation, and similar rules have drawn various results when challenged in the court system. Last month the US Court of Appeals for the Fifth Circuit [official website] lifted an injunction [JURIST report] on a Texas law [JURIST report] that requires women to have a sonogram before undergoing an abortion, allowing the law to be enforced. In October, a judge for the US District Court for the Middle District of North Carolina [official website] issued a preliminary injunction [JURIST report], blocking part of the state's abortion law that required a physician to perform an ultrasound and describe the images to the patient. In March 2010 the Supreme Court of Oklahoma [official website] ruled [JURIST report] that a state law [SB 1878, DOC] imposing broad restrictions on abortion, including the requirement of an ultrasound prior to the procedure, violated that state's constitution.




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France constitutional court declares genocide denial ban unconstitutional
Brandon Gatto on February 28, 2012 3:10 PM ET

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[JURIST] The Constitutional Council of the French Republic [official website, in French] on Tuesday ruled [judgment, in French] that a French law [materials, in French] making it a crime to deny that Armenians suffered a genocide by the Ottoman Empire in 1915 is unconstitutional. Ultimately, the Council found [AFP report] that the law's provisions allowing the imposition of a €45,000 fine, a one-year prison sentence, or both, on those who deny the genocide violates various free speech safeguards within France's founding documents, namely the Constitution of France [text] and the Declaration on Human and Civic Rights [text, PDF]. Turkish Foreign Minister Ahmet Davutoglu [official profile] welcomed the ruling and added that Turkey's foreign affairs cabinet would meet to consider whether to restart economic, political and military contracts with France, which were temporarily gridlocked because of the genocide denial ban. In an official statement [text, in French], French President Nicolas Sarkozy [official website, in French] ordered his government to draft a revised version of the law, noting that the court's decision was met with "great disappointment and profound sadness" by its proponents. "The President of the Republic considers that [genocide] denial is intolerable and must therefore be punished," read the statement, which was released by the president's office.

Despite one Senate committee's rejection, France's genocide denial ban was passed [JURIST reports] by both the Senate and the National Assembly [official websites, in French] in mid-January. However, the law was contested [JURIST report] only a week later when opposition members of both houses of parliament gathered the necessary signatures to warrant the law's review by the Constitutional Council. Although Sarkozy previously insisted that the law did not specifically target Turkey, the Turkish government repeatedly warned that and affirmation of the law would result in Turkey imposing sanctions on France [AFP report].




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Supreme Court declines to rule on Asian carp
Hillary Stemple on February 28, 2012 1:59 PM ET

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[JURIST] The US Supreme Court [official website] on Monday declined to grant an injunction, and denied a petition for writ of certiorari [orders list, PDF] in Michigan v. US Army Corp. of Engineers [SCOTUSblog backgrounder]. Five states petitioned the court [JURIST report] in October asking them to overturn a lower court ruling and to require the US Army Corps of Engineers [official websites] to accelerate a study on ecological separation as well as installation of nets to stop the advancement of Asian carp [EPA backgrounder] toward Lake Michigan. The current study on how to keep the invasive Asian carp from crossing between the Great Lakes and the Mississippi river is expected to take five years [Detroit Free Press report]. Some experts have indicated the invasive species could consume enough plankton to disrupt the food chain, damaging the multi-billion dollar fishing industry [AP report]. A spokesperson for the Attorney General of Michigan indicated that they believe the court reached the wrong conclusion [Chicago Tribune report] and that, as a result, the carp could be getting closer to the Great Lakes.

In August, the US Court of Appeals for the Seventh Circuit ruled against [JURIST report] the five states' efforts to stop the Asian carp. The Supreme Court has denied certiorari [AP report] on the issue three times as of April 2010. In December 2009, the state of Michigan filed a lawsuit [JURIST report] in the Supreme Court against the state of Illinois seeking to close the two waterways, as the court has original jurisdiction in disputes between the states. All three times, the court denied certiorari without comment on the dispute. Michigan reopened the longstanding controversy [backgrounder, PDF] over the diversion canal, created in the 1890s to keep Chicago's sewage from flowing into Lake Michigan. The court issued decrees over the canal in 1930, 1933, 1956, 1967 and 1980. The carp have been traveling up the Mississippi and Illinois rivers for years. Tests have showed that the carp may have gotten through an underwater electric barrier and may now be within six miles of Lake Michigan. The fish were originally imported to control algae in fisheries on the Mississippi River, but escaped during a 1990s flood.




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Virginia Senate approves voter ID bill
Keith Herting on February 28, 2012 1:02 PM ET

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[JURIST] The Virginia Senate [official website] on Monday approved a bill [SB 1, PDF] requiring identification from those trying to vote in elections. The bill passed 21-20 after an initial 20-20 deadlock that was broken by Lt. Governor Bill Bolling [official website]. The bill requires voters to provide:
A current and valid photo identification or a copy of a current utility bill, bank statement, government check, paycheck or other government document that shows the name and address of the voter. Such individual who desires to vote in person but who does not show one of the forms of identification specified in this paragraph shall be offered a provisional ballot.
The bill goes back to the Virginia House of Delegates to confirm amendments made by the Senate and then to Governor Bob McDonnell [official website] who says he is still uncertain if he will sign the bill into law.

The recent trend of states enacting voter identification laws has been a source of controversy as many opponents feel the laws are intended to dissuade poor or minority voters from participating while others view the requirements as a necessary tool to prevent voter fraud. Earlier this month the Advancement Project [advocacy website] filed a lawsuit [text, PDF] challenging a recent Wisconsin voter ID law [JURIST report]. In August, South Carolina's Senate Minority Caucus filed an objection [JURIST report] with the US Department of Justice (DOJ) [official website], asking it to reject the state's new voter identification law. In June, Missouri Governor Jay Nixon [official website] vetoed [JURIST report] a law requiring persons to present photo identification at voting booth. In March, the Georgia Supreme Court [official website] upheld [JURIST report] a law requiring voters to present one of six government-issued photo identifications in order to vote. In contrast, a three-judge panel for the US Court of Appeals for the Ninth Circuit [official website] struck down [JURIST report] a portion of Arizona law requiring proof of citizenship for voter registration in October 2010.




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Germany high court rules eurozone stimulus oversight procedure unconstitutional
Hillary Stemple on February 28, 2012 12:59 PM ET

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[JURIST] Germany's Federal Constitutional Court [official website, in German] on Tuesday ruled [press release, in German] that use of a parliamentary subcommittee to fast-track decisions related to eurozone bailouts is unconstitutional, and that such decisions require full oversight of the Bundestag, the national Parliament of the Federal Republic of Germany [official website]. Two lawmakers brought the challenge to a parliamentary procedure, which allowed a nine-member parliamentary subcommittee to expedite decisions about lending money in the event of an aid request from the European Financial Stability Facility (EFSF) [official website]. According to the court, under the German constitution, legislators have a "comprehensive budgetary responsibility" that requires broad participation when voting on budgetary matters, including aid requests. The court, however, ruled that the subcommittee does have the authority to authorize EFSF's purchase of emergency bonds on the secondary market in the event of a crisis. The court recognized the need for expediency and confidentiality in the purchase of emergency bonds, if the bonds are to have the desired effect of stabilizing a failing economy. In light of the court's ruling, the Bundestag will have to reevaluate the procedure for parliamentary oversight of the EFSF and could decide to grant oversight responsibilities to the 41-member budget committee, rather than the full chamber. The temporary EFSF is scheduled to be replaced by the European Financial Stabilisation Mechanism (EFSM) [official website] this summer, and the Bundestag will likely extend any parliamentary oversight of the EFSF to the EFSM.

In September, the German constitutional court rejected as unfounded [JURIST report] three constitutional complaints against German and European legal instruments and other measures in connection with both the European Monetary Union rescue package and the financial aid package for Greece. The high court ruled [press release] that by voting through national acts that implement the broader European measures, the Bundestag did not unconstitutionally impair its own ability to adopt and control the nation's budget, nor did it infringe on the budget autonomy of future parliaments. In May 2010, the court refused to issue a temporary injunction [JURIST report] against the German government's €22.4 billion ($28.5 billion) contribution to the bailout package for Greece, which has been gripped by a dire debt crisis [BBC backgrounder] and faces severe austerity measures [JURIST report] as it grapples with its debt. The court held that the complainants seeking the injunction did not produce any concrete evidence that their rights under Germany's Basic Law could be "seriously and irreversibly" affected as a result of the guaranteed loan. The court's press release also noted that potential liability risk as a result of the contribution is outweighed by reducing the risks of damaging Germany's national economy as a result of instability of the European Monetary Union.




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Iran executions doubled in 2011: Amnesty
Max Slater on February 28, 2012 12:40 PM ET

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[JURIST] Iran executed twice as many people in 2011 as it did in the previous year, Amnesty International (AI) [advocacy website] reported [text, PDF] Tuesday. The report, entitled "'We Are Ordered to Crush You': Expanding Repression of Dissent in Iran," chronicles widespread international human rights violations that Iran's government has allegedly perpetrated over the past year. The AI report claims that the most common targets of Iran's crackdown on human rights are lawyers, rights activists, filmmakers, journalists and political leaders. The report also details the nature of these human rights violations, which include torture and ill treatment in detention, abysmal prison conditions and unfair trials. At the end of the report, AI strongly urges Iran to curtail its crackdown on human rights. In particular, AI requests that Iranian authorities ensure its citizens the rights to freedom of speech and peaceful assembly in the run up to the March 2 parliamentary elections.

Iran has drawn a great deal of international attention recently. Last week, JURIST guest columnist Sasan Fayazmanesh declared [JURIST op-ed] that the latest US sanctions against Iran are part of an escalating trend in American foreign policy that began in the 1980s. Two weeks ago, UN Secretary-General Ban Ki-Moon [official profile] urged Iran to cooperate with international diplomacy efforts on its nuclear program [JURIST report]. In early February, US President Barack Obama [official website] signed an executive order [JURIST report] imposing strict sanctions on Iranian financial institutions. In January, an Iranian court sentenced an alleged CIA spy to death [JURIST report] for espionage against Iran.




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ICTR to transfer second genocide case to Rwanda court
Sung Un Kim on February 28, 2012 12:32 PM ET

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[JURIST] The International Criminal Tribunal for Rwanda (ICTR) [official website] has decided to transfer the case [text, PDF] of Fulgence Kayishema [case materials] to the Rwandan authorities. The three-panel Referral Chamber ordered the transfer so that Rwandan authorities can refer the case to the High Court of Rwanda for trial under Rule 11 bis authorizing the transfer of cases to national jurisdictions. The Chamber further mandated that all case materials concerning the indictment [text, PDF] against Kayishema be handed over to the Prosecutor General of Rwanda within 30 days after the decision. Kayishema, former Judicial Police Inspector of Kivumu Commune in Kibuye Prefecture, was charged and indicted in absentia for his involvement in the 1994 Rwandan genocide [BBC backgrounder; JURIST news archive] including genocide, complicity in genocide, conspiracy to commit genocide and crime against humanity, but he has remained at large. The Chamber requested that Rwanda regularly report to the ICTR and the International Mechanism for Criminal Tribunals on efforts taken to apprehend Kayishema.

The ICTR's transfer of Kayishema's case to Rwanda is the second such transfer decision within six months. The ICTR previously decided to transfer the case of Jean-Bosco Uwinkindi [Hague Justice profile; case materials], a former Rwandan pastor, to the national authorities, but, on Friday, Judge Khan ordered [text, PDF] that his transfer to be stayed until a suitable monitoring mechanism has been established. In December, the ICTR Appeals Chamber upheld [JURIST report] the decision to transfer Uwinkindi's case. The initial decision [JURIST report] was made in June when the Referral Chamber determined that Rwanda was capable of accepting and prosecuting Uwinkindi's case.




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Thailand court convicts 'yellow shirt' leader of corporate fraud
Andrea Bottorff on February 28, 2012 11:27 AM ET

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[JURIST] The Bangkok Criminal Court on Tuesday convicted a leader of the royalist People's Alliance for Democracy Network [BBC backgrounder], known as "yellow shirts," of corporate fraud. Yellow shirt movement founder and Thai media mogul Sondhi Limthongkul was sentenced to 20 years in prison without parole for violating the Securities and Exchange Act [text, PDF] by fraudulently securing a loan for 1.1 billion baht (USD $36 million) during the 1990s. Sondhi confessed to the charges [Bangkok Post report], and his jail term was shortened from 42 and a half years to 20 years, the maximum allowed by law. Sondhi made a request for bail on Tuesday, which the court will consider. He may also appeal [AFP report] the decision.

A Thai court in September 2010 convicted [JURIST report] Sondhi and his former television co-host Sarocha Pornudomsak of defaming former prime minister Thaksin Shinawatra [BBC profile; JURIST news archive] during their television show by accusing him of insulting the monarchy. The two were sentenced to six months in prison and ordered to pay fines of 20,000 baht (USD $640). The court suspended the sentence for two years, during which time both Sondi and Sarocha are on probation. Thaksin filed the suit [JURIST report] against Sondhi and several others for their claims that he tried to undermine the monarchy. Thaksin is considered the figurehead of the pro-democracy advocates known as the "red shirts." Sondhi lead the yellow shirts in street protests in 2006 that forced Thaksin to temporarily step aside.




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Supreme Court hears arguments on jurisdiction over constitutional claims
Julia Zebley on February 28, 2012 11:07 AM ET

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[JURIST] The US Supreme Court [official website] heard oral arguments [day call, PDF] in two cases on Monday. In Elgin v. Department of Treasury [transcript; JURIST report], the court heard arguments on whether federal district courts have jurisdiction over constitutional claims for equitable relief brought by federal employees under the Civil Service Reform Act (CSRA) [materials]. The petitioners argued that the CSRA was never intended to review constitutional claims, therefore the jurisdiction issue is non-material. The respondents, the Solicitor General's office, argued that the Merit Systems Protection Board (MSPB) should determine whether a claim can be heard in district court. The respondents, former federal employees who had failed to register with the Selective Service between the ages of 18 and 26 pursuant to the Military Selective Service Act (MSSA) [text, PDF], claim that the MSSA discriminates based on sex because it imposes a lifetime bar on federal executive agency employment for violations carried out by a specific group of men. The men resigned or were fired from their federal posts for failure to register. The court did not consider this constitutional issue on Monday.

The court also considered Wood v. Milyard [transcript, PDF; JURIST report] to decide if the prosecution failing to raise a statute of limitations argument in response to plaintiff's writ of habeas corpus is an error that can be overturned. Further, specific to this case, if the state's assurance to the plaintiff that they would not raise a statute of limitations argument is enough to bind them to not be able to raise it later in proceedings. The petitioner, Patrick Wood's attorney, argued that the state of Colorado had acted strategically in raising to fail the claim and could not be rewarded for this. The Solicitor General of Colorado argued, in response, that the Supreme Court should, "recognize that courts are not bound by a State's failure to properly argue and preserve a procedural bar to a habeas claim; and second, to the extent there is an exception to that rule for deliberate waivers, the court should apply the common rule that a waiver must be unequivocal."




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UN rights chief calls for immediate cease-fire in Syria
Andrea Bottorff on February 28, 2012 10:17 AM ET

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[JURIST] UN High Commissioner for Human Rights Navi Pillay [official profile], in a speech to the UN Human Rights Council [official website] during an emergency session on Tuesday, called for an immediate end to the violence [text] in Syria. Pillay accused the Syrian forces of committing human rights violations and urged the government to stop its escalating violence against civilians. She also asked the government to support humanitarian efforts and justice for victims:
I further call upon the Government of Syria to allow independent international monitors to visit all places of detention and grant unhindered access to humanitarian actors. I also call on the Government of Syria to release all political prisoners and persons who have been arbitrarily detained. The Government must launch prompt, independent and impartial investigations in accordance with international standards to end impunity, ensure accountability, bring perpetrators to justice, and to take measures to ensure adequate, effective and prompt reparation for the victims.
Syria's UN ambassador, Fayssal al-Hamwi, walked out [SANA report] of the session after Pillay's speech. He said the meeting was not legitimate and accused the international community of arming rebel groups, using economic sanctions to hurt civilians and spreading lies about the Syrian government and the situation in the country. Also on Tuesday, a spokesperson for the French foreign ministry announced that the UN Security Council [official website] had begun drafting a resolution [Reuters report] aimed at stopping the violence in Syria and promoting humanitarian missions.

The increasing unrest in Syria has grabbed international attention. Last week, the UN-appointed Independent International Commission of Inquiry on Syria accused the government of violating international human rights law [JURIST report] after finding that Syrian forces are engaging in torture and killings under orders from high level government officials. Syrian officials announced Monday that over 80 percent of voters in the country approved the new constitution [JURIST report], which imposes term limits on the president and provides for a multi-party system. However, Western leaders called the referendum a "farce" and condemned [Independent report] the "sham vote" that cannot be a way of resolving the ongoing violence. Earlier this month, both Pillay and UN Secretary-General Ban Ki-moon [official profile] called for an end to the violence in Syria, with Pillay asking the UN Security Council to refer the situation in Syria [JURIST reports] to the International Criminal Court (ICC). Pillay urged an investigation of Syrian government and military officials for possible crimes against humanity. The OHCHR reports that more than 5,000 people have died since anti-government protests began last March.




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EU Kosovo authorites arrest 6 Serbia government agents
Julia Zebley on February 28, 2012 8:48 AM ET

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[JURIST] The European Union Rule of Law Mission in Kosovo (EULEX) [official website] announced Monday that it arrested six Serbian officials [press release] in Kosovo [BBC backgrounder] on Saturday, under allegations that they were "suspected of exerting undue pressure [...] not to recognize Kosovo institutions." In a closed hearing [B92 report], a judge determined that five of the suspects will be held for a month for further investigation. One suspect was released by the special prosecutor. Several of the detained Serbians carried Minister of the Interior (MUP) [official website] credentials, and one had papers from the International Police Association (IPA) [official website] of Serbia. Ivica Dacic, the Serbian Interior Minister, denounced the arrests and called them an abuse of power by Kosovo-Albanian forces. The Serbian Orthodox Church [official website] also criticized the arrests and accused the EULEX of brutality against the detainees and Serbian citizens incidental to the arrests.

Kosovo was recognized as an independent state by the US and several major EU countries in February 2008, and the EULEX has been investigating war crimes [JURIST reports] since December 2008. In November, Kosovo politician and parliamentarian Fatmir Limaj went on trial [JURIST report] for war crimes allegedly committed during the 1998-99 Kosovo war with Serbia [BBC backgrounder; JURIST news archive]. In October, the EULEX sentenced a former ethnic Albanian rebel fighter [JURIST report] to five years in prison for crimes committed against civilians during the same conflict. In September, the EULEX charged 10 former members [JURIST report] of the Kosovo Liberation Army (KLA), including Fatmir Limaj, with war crimes.




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Syria voters approve new constitution
Jamie Davis on February 27, 2012 2:09 PM ET

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[JURIST] Over 80 percent of voters in Syria [JURIST news archive] have voted to approve the new Syrian constitution [text], officials said Monday. The proposed constitution will impose term limits on the president as well as provide for a multi-party system. However, the term limits will theoretically begin once the constitution passes, meaning President Bashar al-Assad's previous time in office will not be counted against the term limits. Sunday's referendum in which Syrians has been called a "farce" by Western leaders and has been condemned [Independent report] as a "sham vote" which cannot be a way of resolving the violence taking place in Syria. Syrian state television announced the approval, along with a report of 57.4 percent voter turnout. Earlier Monday, the EU agreed to impose new sanctions on Syria [Telegraph report], including an asset freeze of the Syrian Central Bank. EU foreign ministers have also agreed to forbid cargo flights from Syria into the EU and restrict the trade gold and silver between Syria and the EU.

The new constitution provides for freedom of speech, press, assembly and association [JURIST report] in Articles 42 through 45, which some see as a step in the right direction. The referendum is an attempt to calm 11 months of protests and general opposition to the Assad regime. Activists estimate that more than 7,500 people have died since Assad began cracking down on protesters. The UN General Assembly voted earlier this month to condemn Syria through a non-binding resolution [JURIST report]. The resolution supported a plan advanced by the Arab League that aims to bring the situation in the country to a close as quickly as possible by encouraging Assad to step down.




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Thousands in Sri Lanka protest proposed UN war crimes resolution
Jamie Davis on February 27, 2012 1:09 PM ET

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[JURIST] Thousands of Sri Lankans joined government-sponsored protests on Monday in opposition to a proposed UN Human Rights Council [official website] resolution concerning crimes that allegedly occurred during the country's civil war. The protests, which were planned throughout 150 cities on the same day that the council began a four-week session in Geneva, were organized in an attempt to show the country's opposition to Western countries backing the UN resolution which calls for an investigation into alleged war crimes [BBC report] committed by both the Sri Lankan government and the Liberation Tigers of Tamil Eelam (LTTE) [TIME backgrounder]. Sri Lankan government officials have said there is no need for a resolution [Reuters report] and that the country remains committed to conducting its own investigation.

Sri Lanka has conducted some independent investigations into allegations of war crimes occurring during the civil war. In December, Sri Lanka's Lessons Learnt and Reconciliation Commission released a report concluding that Sri Lanka's military did not intentionally attack civilians [JURIST report] following the country's civil war. In November, Sri Lankan Secretary of Defence Gotabaya Rajapaksa stated that the government had begun counting the number of civilian deaths from its 26-year civil war with the LTTE. Also in November, a Sri Lankan army chief was sentenced to three additional years of imprisonment [JURIST report], for implicating another Sri Lankan official in war crimes.




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Credibility of Cambodia genocide tribunal questioned
Jamie Reese on February 27, 2012 12:40 PM ET

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[JURIST] Dr. Mark Ellis, executive director of the International Bar Association (IBA) [official website] on Sunday published the second in a series of reports examining the Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website]. The report [text, PDF], "The ECCC- A Failure of Credibility," asserts that the legitimacy of the ECCC is undermined, and, in order to promote international justice, a criticism of the court's failure to meet international standards must be undertaken. Ellis spent a week at the court observing the trials and speaking with individuals. Ellis asserts that both judicial misconduct and interference from the executive are undermining the court's ability to prosecute Khmer Rouge [BBC backgrounder] leaders and bring justice to victims and affecting the accuracy of the historical record. Ellis wrote:
The Cambodian judiciary is not de facto independent from the government. Cambodia has been criticised by the United Nations (UN) for failing to "develop neutral State institutions, checks on executive power, and the means to enforce rights guaranteed in the law and the Constitution". This has resulted in a judiciary that continues to be 'subjected to executive interference and open to corruption'.
Thus far, the only former Khmer Rouge leader to be convicted [JURIST report] by the ECCC is Kaing Guek Eav [ECCC materials], also known as "Duch," for crimes against humanity and violation of the 1949 Geneva Conventions [materials].

Last week, the Open Society Justice Initiative [advocacy website] reported that the continuing dispute between Cambodia and the UN over the appointment of Judge Laurent Kasper-Ansermet to the ECCC threatens the legitimacy of the court [JURIST report]. Last month, the UN [official website] refused to replace [JURIST report] Kasper-Ansermet, the judge tasked with investigating two possible suspects believed to be involved in the deaths of around 1.7 million people, after Cambodia attempted to block him. In October, 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. In October 2010, Hun Sen informed the UN that Cambodia will not allow further prosecutions of low-ranking Khmer Rouge officers [JURIST report].




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Indonesia high court reinstates 15-year sentence for radical cleric
Andrea Bottorff on February 27, 2012 11:29 AM ET

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[JURIST] The Supreme Court of Indonesia [official website, in Indonesian] on Monday restored a 15-year prison sentence for radical Indonesian cleric Abu Bakar Bashir [JURIST news archive] for his conviction on terrorism charges. Bashir appealed to the Supreme Court his conviction by the Jakarta High Court, which had reduced his prison sentence from 15 years to nine years [JURIST report], in an effort to be cleared of terrorism charges and released from prison altogether. However, the Supreme Court rejected Bashir's appeal and reinstated the original 15-year prison sentence [JURIST report]. Regarded as a spiritual leader of militant Islam in Indonesia, Bashir is a vocal advocate of violent jihad and was jailed in June for backing a terrorist training camp in the Indonesian province of Aceh. The training camp prepared Islamic radicals to carry out attacks in Jakarta and was allegedly planning attacks modeled after the 2008 Mumbai terror attacks [JURIST news archive] and targeting high-profile members of the Indonesian government. Bashir was also accused of providing more than $62,000 to help fund the camp. A spokesperson for the court said Monday that the reinstatement of the stricter sentence shows the court's strict treatment [Jakarta Post report] of terrorism convictions.

Bashir's trial began in February 2011 [JURIST report] in the District Court of South Jakarta. He was convicted of inciting terrorism in connection with the terrorist training camp in May after having pleaded not guilty [JURIST report] the month before. He was suspected of links to al Qaeda [CFR backgrounder; JURIST news archive] and Jemaah Islamiyah (JI) [CFR backgrounder], a terrorist group with links to al Qaeda that has been implicated in a number of attacks in Indonesia, including the 2002 Bali nightclub bombing [JURIST news archive] that left more than 200 people dead. In 2006, the Indonesian Supreme Court overturned [JURIST report] Bashir's conviction on conspiracy charges connecting him with the bombings. He was released from prison [JURIST report] earlier in 2006 after spending 26 months in jail on different charges related to the bombings.




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BP oil spill trial postponed to allow more time for settlement agreement
Sarah Posner on February 27, 2012 10:31 AM ET

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[JURIST] Judge Carl Barbier of the US District Court for the Eastern District of Louisiana [official website] postponed the trial over the Gulf of Mexico Deepwater Horizon oil spill [BBC backgrounder; JURIST news archive] Monday, hours before it was set to begin, in order to give British Petroleum (BP) [corporate website] more time to reach a settlement agreement. Barbier adjourned [UPI report] the start of this multi-billion dollar trial after a conference call between the parties a week earlier, in hopes that talks between the parties could produce a settlement. BP could be liable for up to $52 billion in what was the largest accidental oil spill in history, damaging marine life and harming the tourism industry. BP denies gross negligence and urges the court to hold both Transocean [corporate website] and Halliburton Energy Services Inc. jointly liable for their respective roles as owner of the Deepwater Horizon rig and pourer of the concrete that lined the oil well which was destroyed, causing the oil spill. Both BP and Transocean are defendants in the case. If a settlement is not reached, the trial could span the next two years.

Last month, Barbier issued an order [JURIST report] that BP will be held liable for a portion of the damages owed by Transocean stemming from the oil spill. 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.




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Spain high court acquits judge Garzon in abuse of power case
Andrea Bottorff on February 27, 2012 10:26 AM ET

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[JURIST] The Spanish Supreme Court [official website, in Spanish] in a 6-1 decision acquitted [judgment, in Spanish] Spanish Judge Baltasar Garzon [BBC profile; JURIST news archive] Monday of abuse of power charges [JURIST report]. Garzon was charged with abusing power by ordering 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 testified in the trial [JURIST report] last month, denying that his investigation was politically motivated, stating that he was seeking justice for the victims of the alleged crimes, and rejecting the idea that the 1977 amnesty law covered widespread human rights abuses. His remarks were 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. Garzon would have faced up to a 20-year suspension from the bench if he had been convicted, as well as fines.

Garzon was also charged in two other recent corruption cases. Earlier this month, the Spanish Supreme Court convicted Garzon of ordering illegal wiretaps in jailhouses, after a trial lasting less than one month [JURIST reports]. The court had 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. The court suspended him from practicing law for 11 years. Two weeks ago, the court dismissed [AFP report] the other case against Garzon, involving bribery charges over money he received for seminars conducted in the US. 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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Nigeria ex-governor pleads guilty to money laundering charges in UK court
Sarah Posner on February 27, 2012 10:00 AM ET

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[JURIST] The former governor of Delta state [official website] in Nigeria, James Ibori, pleaded guilty in a UK court on Monday to 10 counts of money laundering and conspiracy to commit fraud. The former governor of Nigeria's oil-rich state is one of the wealthiest, most influential political figures in the country. Ibori was extradited to London to stand trial after British police accused him of laundering [BBC report] $250 million during an eight-year period. Before the UK trial commenced, Ibori switched his plea to guilty for laundering money in the UK through off-shore accounts, in order to obtain a better sentence for the charges against him. Two other former governors of Nigeria have been convicted of corruption charges. Sentencing for Ibori is scheduled to take place on April 16.

In October 2010, the Dubai Court of First Instance [official website] ruled [JURIST report] that Ibori could be extradited to the UK to face charges of money laundering, fraud and embezzlement. Ibori was arrested in the United Arab Emirates by INTERPOL [official website] in May 2010. Nigeria's Economic and Financial Crimes Commission (EFCC) [official website] accused Ibori of stealing Delta state funds worth $292 million during his time in office. These funds were allegedly filtered through banks in the UK, which led the UK Metropolitan Police [official website] to issue a warrant for his arrest. Ibori appealed the decision to Dubai's Civil Court of Appeal.




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Egypt court adjourns trial of NGO employees until April
Jaimie Cremeans on February 26, 2012 3:00 PM ET

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[JURIST] A Cairo Criminal Court judge on Sunday adjourned the trial of 43 non-governmental organization (NGO) employees, including 16 Americans and 27 other foreigners, until April following the first day of the trial. Employees of the International Republican Institute, the National Democratic Institute and Freedom House [advocacy websites] are being charged with promoting democracy in the country without proper licenses and using illegally received foreign funding. On the first day of trial, only 14 of the 43 defendants were present, even though it was compulsory that they appear under Egyptian law. None of the defendants from America or Europe was present. In an interview [text] Sunday, US Secretary of State Hillary Clinton [official website] said the US is "working with the highest levels of the existing Egyptian authorities and ... hoping to get this resolved." The delay [Egypt Independent report] may give the countries involved an opportunity to come to a nonjudicial resolution before the trial starts again.

The employees were charged earlier this month [JURIST report] after being investigated by Egyptian officials. Investigation into the American workers caused Clinton to threaten to withhold [CNS report] Egypt's annual $1.3 billion military earlier this month. Weeks later, however, President Barack Obama nevertheless made a proposal to Congress to supply the aid [Al Arabiya report] for fiscal year 2013. Egypt's investigations of NGOs has caused growing strains on US-Egypt relations since January, when the government denied cracking down on NGOs after raiding the NGOs [JURIST reports] in December.




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Former Yugoslavia municipal officer sentenced to 2 months for refusing to testify
Matthew Pomy on February 26, 2012 11:36 AM ET

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[JURIST] The International Criminal Tribunal for the Former Yugoslavia (ICTY) [official website; JURIST news archive] on Friday sentenced [judgment summary, PDF] former president of the municipality of Sokolac, Bosnia and Herzegovina, Milan Tupajic [ICTY case summary, PDF], to two months in prison on two counts of contempt for refusing to testify against Radovan Karadzic [ICTY case summary, PDF], founding member of the Serbian Democratic Party (SDS) who is being tried for several war crimes including genocide. Tupajic claimed that he was unable to testify because of his health, among other reasons, but the court rejected that idea, saying:
The Chamber reviewed the documents the Accused submitted in support of his health concerns but considers that his health concerns do not constitute a just excuse for his failure to comply with the orders as contained in the subpoenas. At trial, in private session, the Accused submitted evidence in relation to other reasons for refusing to appear before the Chamber. The Chamber examined these reasons and considers that they do not constitute a just excuse under Rule 77 (A)(iii) [text, PDF] of the Rules.
The judgement ended the trial of Tupajic who will be credited with time served against his two-month sentence.

The sentencing comes just days after the court was accused by former Commander of the Bosnian Serb Army, Ratko Mladic [BBC profile; JURIST news archive], of being biased [JURIST report]. Last month, the ICTY accepted a plea deal [JURIST report], convicting Jelena Rasic, the case manager for Bosnian war criminal Milan Lukic, on five counts of contempt for procuring false witness statements. In December, the ICTY convicted former Yugoslav intelligence officer Dragomir Pecanac of contempt [JURIST report] for failing to testify before the tribunal. Earlier that month, ICTY with International Criminal Tribune for Rwanda (ICTR) [official website; JURIST news archive] reported [JURIST report] to the UN Security Council [official website] their progress in tracking and arresting fugitives for the tribunals' mandates.




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Syria holds constitutional referendum
Matthew Pomy on February 26, 2012 10:07 AM ET

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[JURIST] Syria held a referendum Sunday to vote on a new constitution [text]. The gesture towards the opposition by President Bashar al-Assad [BBC profile; JURIST news archive] has widely been seen as an empty one, with much of the international community calling it a "sham" [AP report]. The vote comes just one day after reportedly 89 people were killed in Homs, the center of the opposition. The proposed constitution will impose term limits on the president as well as provide for a multi-party system. However, the term limits will theoretically begin once the constitution passes, meaning Assad's previous time in office will not be counted against the term limits. The preamble describes the proposed constitution as:
[A] system of fundamental principles that enshrines independence, sovereignty and the rule of the people based on election, political and party pluralism and the protection of national unity, cultural diversity, public freedoms, human rights, social justice, equality, equal opportunities, citizenship and the rule of law, where the society and the citizen are the objective and purpose for which every national effort is dedicated.
The new constitution also provides for freedom of speech, press, assembly and association in Articles 42 through 45, which some see as a step in the right direction.

The referendum is an attempt to calm 11 months of protests [JURIST news archive] and general opposition to the Assad regime. Activists estimate that more than 7,500 people have died since Assad began cracking down on protesters. The UN General Assembly [official website] voted earlier this month to condemn Syria through a non-binding resolution [JURIST report]. The resolution supported a plan [text, PDF, in Arabic] advanced by the Arab League [official website] that aims to bring the situation in the country to a close as quickly as possible by encouraging Assad to step down. The same day, UN Secretary General Ban Ki-Moon [official profile] called on Syria to end to violence against civilians and possible crimes against humanity [JURIST report]. Earlier that week, UN High Commissioner for Human Rights Navi Pillay [official profile] called for the UN Security Council to refer the situation in Syria [JURIST report] to the International Criminal Court [official website].




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US lawmakers to appeal Defense of Marriage Act ruling
Michael Haggerson on February 25, 2012 3:02 PM ET

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[JURIST] Lawyers for the Bipartisan Legal Advisory Group notified the US Court of Appeals for the Ninth Circuit [official website] on Friday that they plan to appeal the ruling earlier this week in the US District Court for the Northern District of California [official website] that the Defense of Marriage Act (DOMA) [text; JURIST news archive] is unconstitutional [JURIST report]. House Speaker John Boehner, Majority Leader Eric Cantor and Majority Whip Kevin McCarthy [official websites] of the advisory group are pursuing the appeal [AP report]. The advisory group's two Democratic members, Minority Leader Nancy Pelosi and Democratic Whip Steny Hoyer [official websites], are not joining the GOP members in the appeal.

The district court's ruling is the most recent development in the debate regarding the constitutionality of DOMA and its repeal. The US Senate Judiciary Committee [official website] voted to repeal DOMA [JURIST report] in November, marking the first time a Congressional group has voted to repeal the law banning federal recognition of same-sex marriage. In a similar case this past October, a disabled Navy veteran filed a notice of appeal [JURIST report] with the Court of Appeals for Veterans Claims [official website] for denying her partner a share of her disability benefits under DOMA. The Department of Veterans Affairs [official website] allegedly told the veteran she could not receive benefits because her spouse was a woman. In March 2011, congressional Democrats introduced the Respect for Marriage Act [text], which was intended to repeal DOMA [JURIST report], but it has not yet passed. The Congressional action follows an announcement from US President Barack Obama last year that he would continue to fight for the repeal [JURIST report] of DOMA, and last year's announcement by the US Department of Justice (DOJ) [official website] that it will no longer defend the constitutionality [JURIST report] of Section 3 of DOMA in court cases challenging the provision.




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Federal judge dismisses challenge to Google privacy changes
Michael Haggerson on February 25, 2012 2:12 PM ET

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[JURIST] A judge for the US District Court for the District of Columbia [official website] dismissed [opinion, PDF] a suit on Friday from the Electronic Privacy Information Center (EPIC) [advocacy website], a consumer privacy group, asking the Federal Trade Commission (FTC) [official website] to block Google's [corporate website] proposed privacy policy changes [text]. EPIC brought suit against the FTC earlier this month [JURIST report]. The new policy allows a user's information to be shared among different Google products, including YouTube, Gmail, and Google Maps. EPIC alleged that the changes to the privacy policy were in violation [EPIC materials] of a consent order [JURIST report] between the FTC and Google in October over a breach of consumer privacy rights and misleading consumers during the launch of Google Buzz, a social networking service. US District Judge Amy Berman Jackson stated that the decision to not block the privacy policy changes was within the FTC's discretion and thus not judicially reviewable:
[T]he FTC's decision whether to take action with respect to a potential violation of the Consent Order is a quintessential enforcement decision that is committed to the agency's discretion and is not subject to judicial review. ... The FTC is in the best position to evaluate whether Google's new policies will in fact violate the Consent Order, and if so, what course of action the agency should pursue.
Because the court ruled that the FTC's decision was not subject to judicial review, it never reached the issue of the merits of EPIC's case against the FTC. The changes to the privacy policy are set to take effect March 1.

Google's new privacy policy has faced heavy criticism from advocates concerned with consumer privacy. On Thursday the National Association of Attorneys General (NAAG) [official website] sent a letter [JURIST report] to Google, signed by 36 state attorneys general, expressing concerns about the company's new privacy policy. Last week, three US representatives sent a letter [text, PDF] to the Federal Trade Commission (FTC) [official website] asking it to look into [JURIST report] Google's new privacy policy. Last month, Google issued a letter [JURIST report] in response to concerns raised by members of Congress regarding consumer privacy rights as impacted by the new policy. In January, US Representative Edward Markey (D-MA) [official website] and seven other lawmakers sent a letter [text, PDF] to Google CEO Larry Page containing 11 questions regarding consumer privacy rights [JURIST report] as affected by Google's new privacy policies.




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Italy court dismisses Berlusconi corruption case
Jamie Davis on February 25, 2012 10:44 AM ET

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[JURIST] A Milan court on Saturday dismissed corruption charges against former Italian prime minister Silvio Berlusconi, [Guardian backgrounder; JURIST news archive], finding that the statute of limitations had expired. Berlusconi was on trial for allegedly bribing his British tax lawyer, David Mills, to lie when testifying about Berlusconi and his holding company Fininvest in two trials that took place in the 1990s. fBerlusconi, who was in office during most of the five-year-long proceedings, has been accused by some critics of attempting to use the majority he had as Prime Minister to change the law in order to give himself immunity and avoid prosecution. Mills was found guilty in a separate trial of receiving money, but that case was dismissed in 2010 because the statute of limitations had also lapsed.

Berlusconi, who resigned as prime minister in November, has been a defendant in nearly 50 cases. Last week, prosecutors asked a court to try him on tax evasion charges [JURIST report]. He is also facing charges of publicly releasing private wiretaps, embezzlement, and paying for sex with an underage prostitute [JURIST reports]. In July, an Italian appeals court ordered Fininvest to pay €560 million in damages [JURIST report] and fees to Compagnie Industriali Riunite (CIR) Group. The complaint stemmed from Fininvest's 1991 acquisition of Italian publishing company Mondadori, during which Fininvest bribed a judge in exchange for favorable decisions. In January 2011 the Italian Constitutional Court held hearings and subsequently struck down [JURIST reports] portions of a immunity law backed by Berlusconi that would have granted the premier and other public officials temporary amnesty from any charges while holding office.




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Maine to put same-sex marriage referendum on November ballot
Jamie Davis on February 25, 2012 9:57 AM ET

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[JURIST] A pro-same-sex marriage group in Maine, EqualityMaine [advocacy website], has gathered enough signatures to place a same-sex marriage [JURIST news archive] referendum on the November ballot. The question reads: "Do you favor a law allowing marriage licenses for same-sex couples that protects religious freedom by ensuring no religion or clergy be required to perform such a marriage in violation of their religious beliefs?" Same-sex marriage opponents will have 10 days to challenge the signatures [Reuters report] in an attempt to stop the bill from being placed on the ballot. In 2009, the Maine legislature passed a same-sex marriage bill, but voters chose to overturn the measure [JURIST report] by voting in a referendum much like the one planned for November. EqualityMaine now expects that voters will pass the same-sex bill by more than ten percent.

Recently, there has been a nationwide push towards acceptance of same-sex marriage. Earlier this week, the Maryland Senate passed a same-sex marriage bill [JURIST report], sending it to the governor. Also this week, Washington state legalized same-sex marriage [JURIST report] after Governor Christine Gregoire signed the legislation. New Jersey is also considering legalizing same-sex marriage soon, although it currently has a civil union system in place. Governor Chris Christie conditionally vetoed a same-sex marriage bill [JURIST report] last week and called for a voter referendum to decide the issue, rather than the state legislature. Same-sex marriage has also been legalized in New York, Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and the District of Columbia [JURIST reports].




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US immigration judge rules former El Salvador general may be deported
Jaimie Cremeans on February 24, 2012 3:14 PM ET

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[JURIST] A federal immigration judge in Florida decided Thursday that former El Salvador General Carlos Eugenio Vides Casanova can be deported for war crimes and crimes against humanity committed while in El Salvador. Judge James Grim found [NYTimes report] that Vides assisted in both the killing of four American women in 1980 and the torture of two Salvadorans during El Salvador's 12-year civil war [PBS backgrounder]. Although this was not an official order for Vides' deportation, it is a confirmation that the government has the ability to deport him based on charges brought against him by the Human Rights Violators and War Crimes Unit [official website] of the US Department of Homeland Security [official website].

The Obama administration charged Vides [JURIST report] in April with human rights crimes and sought to deport him. He had been living in Florida since the conclusion of his term as defense minister in 1988. In 2006, the US Court of Appeals for the Eleventh Circuit upheld a $55 million verdict [JURIST report] against him and another former Salvadoran general, Jose Guillermo Garcia, in a civil suit for torture and human rights violations. The verdict had previously been thrown out for failure to file within the 10-year statute of limitations but was reinstated because of "extraordinary circumstances." In 2000, however, the US lost in a jury trial [NYTimes report] when attempting to prosecute Vides and Garcia for the killing of the four American women in 1980. After that case, one juror explained that they did not believe the generals were directly responsible for the killings or that they could have done anything to stop them.




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Accused war criminal calls Yugoslavia tribunal 'biased'
Matthew Pomy on February 24, 2012 2:14 PM ET

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[JURIST] Former Commander of the Bosnian Serb Army, Ratko Mladic [BBC profile; JURIST news archive], accused the International Criminal Tribunal for the former Yugoslavia (ICTY) of being "biased" against Serbs and a "puppet" of the North Atlantic Treaty Organization (NATO) [official websites]. Mladic faces charges [case background] of genocide and crimes against humanity, including murder, political persecution, forcible transfer and deportations, cruel treatment, and the taking of peacekeepers as hostages committed by Bosnian Serb forces under his command during the Bosnian civil war, which saw more than 100,000 casualties and hundreds of thousands more displaced. Mladic continues to deny all 11 chargers. During the 90-minute hearing [AP report], Mladic repeatedly attacked NATO for its involvement in foreign affairs and continually disrupted the hearing until Judge Alphons Orie [ICTY profile] cut off his microphone.

This is the latest controversy in the case against Mladic [JURIST news archive]. Earlier this month, the ICTY further delayed [JURIST report] the beginning of the trial until May 14. In December of last year, a three-judge panel for the ICTY accepted a request brought by prosecutors to reduce the number of crimes [JURIST report] they intend to prove against Mladic from 196 to 106. In October, the ICTY prosecutor refused to seek further appeal [JURIST report] of the tribunal's refusal to split Mladic's trial into separate actions: one for his conduct during the Srebrenica massacre [JURIST news archive], where approximately 8,000 people were killed, and one for all of his other charges during the Bosnian civil war [JURIST news archive]. Mladic made his first appearance [JURIST report] at the ICTY in June, contesting the charges while simultaneously asking for more time to review them, which he was granted. Before that, he had lost his final appeal [JURIST report] in Serbia to avoid extradition and was transported to The Hague.




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Somalia ex-PM will not contest war crimes claims in US court
Jaimie Cremeans on February 24, 2012 2:14 PM ET

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[JURIST] Former Somali prime minister Mohamed Ali Samantar on Thursday accepted legal responsibility for war crimes and crimes against humanity before the US District Court for the Eastern District of Virginia [official website]. The civil suit [case summary] was brought by the Center for Justice and Accountability (CJA) [advocacy website] in 2004 against Samantar, who had been living in Washington, DC, for more than 15 years, on behalf of five Somalis under the Torture Victim Protection Act of 1991 [28 USC § 1350 text]. The plaintiff Somalis had been granted asylum in the US after being imprisoned and tortured while Samantar was in office under Dictator Siad Barre. Samantar said he will not contest his legal responsibility but made clear that by doing this he is not admitting guilt. The CJA said this is the first time [CJA press release] anyone will be held legally responsible for the events that occurred during Barre's regime.

Samantar appealed his case multiple times, claiming immunity under the Foreign Sovereign Immunities Act (FSIA) [28 US Chapter 97 text] and other common law defenses. Last year, the district court ruled that no immunity privileges under any of theses laws applied. The case made it to the US Supreme Court [official website] in 2010, which decided that the FSIA did not extend immunities to foreign leaders in civil cases. This ruling overturned the district court's 2007 decision to dismiss the case on grounds that the FSIA granted Samantar immunity.




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Ivory Coast post-election violence investigation flawed: HRW
Jerry Votava on February 24, 2012 2:05 PM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] expressed concern [press release] Thursday over the investigation into post-election violence [JURIST news archive] in the Ivory Coast in 2010 and 2011 and advocated six-month extension of the probe. HRW's primary concern rests on the short time-frame of the investigation, begun in January 2012 and currently finalizing its findings, as well as reports that it has received that indicate that the investigation has been rushed and may miss important elements:
It appears unlikely to have adequately either documented the conflict's serious crimes or identified those responsible on both sides after only a month of investigations. ... In meetings with Human Rights Watch, Ivorian civil society. representatives, United Nations officials, and diplomats highlighted serious problems with the commission. They cited its failure to include representation from pro-Gbagbo groups and to consult sufficiently with civil society.
HRW expressed further concern that all 17 members of the investigating commission were chosen by President Alassane Ouattara [official website, in French], the winner of the election.

Earlier this week, International Criminal Court (ICC) [official website] Chief Prosecutor Luis Moreno-Ocampo [official profile] was granted permission [JURIST report] by a pretrial chamber to expand his investigation of war crimes in the Ivory Coast to incidents dating back to 2002. In December, former Ivory Coast president Laurent Gbagbo [BBC profile] appeared before the Pre-Trial Chamber III of the ICC [JURIST report] for an initial hearing. During the hearing the court verified Gbagbo's identity and ensured that he was informed of the four charges against him, including murder, persecution, inhumane acts, and rape and other forms of sexual violence allegedly committed during last year's post-election violence in the Ivory Coast. Gbagbo was taken into custody [JURIST report] in November for his upcoming appearance before the court. In October, Moreno-Ocampo traveled to the Ivory Coast [JURIST report] to investigate allegations of war crimes committed during post-election violence following the November 2010 elections.




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Rights groups bring new challenge against Wisconsin voter ID law
Matthew Pomy on February 24, 2012 1:16 PM ET

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[JURIST] The Advancement Project [advocacy website] filed a lawsuit [text, PDF] Thursday on behalf of four other rights groups alleging that the new Wisconsin voter ID law, Wisconsin Act 23 [text, PDF], is unconstitutional because it is racially discriminatory. The new law states that all voters must present photo identification at the polls in order to vote in local, state or federal elections. The complaint, filed in the US District Court for the Eastern District of Wisconsin [official website], claims that Act 23 violates Section 2 of the Voting Rights Act [text], which "prohibits drawing election districts in ways that improperly dilute minorities' voting power." Plaintiffs argue that:
This law will disproportionately injure African-American and Latino voters, who are much less likely than other members of the electorate to possess the required forms of identification and also face disproportionately greater burdens in obtaining such identification. As a result, African-Americans and Latinos are far more likely than other Wisconsin citizens to have their right to vote denied or abridged by Act 23.
Plaintiffs are asking the court to find the Act in violation of the Voting Rights Act and award legal fees. Similar lawsuits have also been filed by the American Civil Liberties Union [text] and the League of Women Voters [JURIST reports].

There are now 31 US states [NCSL backgrounder] that require voters to present some form of ID at the polls, including 15 states that require photo ID, but the issue remains controversial. In August, South Carolina's Senate Minority Caucus filed an objection [JURIST report] with the US Department of Justice (DOJ) [official website], asking it to reject the state's new voter identification law. In June, Missouri Governor Jay Nixon [official website] vetoed [JURIST report] a law requiring persons to present photo identification at voting booth. In March, the Georgia Supreme Court [official website] upheld [JURIST report] a law requiring voters to present one of six government-issued photo identifications in order to vote. In contrast, a three-judge panel for the US Court of Appeals for the Ninth Circuit [official website] struck down [JURIST report] a portion of Arizona law requiring proof of citizenship for voter registration in October 2010.




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State AGs file suit to block new contraception mandates
Jerry Votava on February 24, 2012 1:11 PM ET

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[JURIST] Nebraska Attorney General Jon Bruning [official website], joined by attorneys general from six other states, filed a lawsuit Thursday [complaint, PDF] in the US District Court for the District of Nebraska [official website] challenging new health care mandates that require the provision of contraception for all employees, including those of religious institutions. The new mandates were promulgated as a result of the recent Patient Protection and Affordable Care Act (PPACA) [text; JURIST backgrounder] that was signed [JURIST report] in March 2010. The parties argue that the provision of contraception, sterilization and related services by their insurance companies is in effect a subsidy to those practices which may offend individuals with certain religious beliefs. The complaint contends:
[The rule] violates the freedom of speech provided by the First Amendment to the United States Constitution ... because it compels Plaintiffs to subsidize conduct in violation of their moral and religious beliefs[,] ... violates the Free Exercise Clause of the First Amendment by negating the right of Plaintiffs to act in accordance with their beliefs [and] ... works a substantial burden on the Plaintiffs' ability to freely practice their religion, in violation of the Religious Freedom Restoration Act.
In a statement [text, PDF], Bruning said, "[t]his regulation forces millions of Americans to choose between following religious convictions and complying with federal law. This violation of the 1st Amendment is a threat to every American, regardless of religious faith." Joining Nebraska in the challenge are Florida, Michigan, Ohio, Oklahoma, South Carolina and Texas.

There have been numerous challenges [JURIST timeline] to the constitutionality of various provisions of the PPACA. In January, 26 states submitted a brief to the US Supreme Court [official website] challenging the constitutionality of the expansion of Medicaid for the poor and disabled in the PPACA. In November, the Supreme Court granted certiorari to rule on health care reform law [JURIST report] in three separate cases, originally 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.




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UN report: conflict-related sexual violence is global risk
Sung Un Kim on February 24, 2012 11:28 AM ET

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[JURIST] UN Special Representative on Sexual Violence in Conflict Margot Wallstrom [profile] on Thursday presented the Secretary-General's annual report on conflict-related sexual violence [text, PDF] to the UN Security Council [official website; press release]. The report documents numerous conflict-related sexual violence cases [UN News Centre report] in Colombia, Ivory Coast, Democratic Republic of the Congo (DRC), Libya, Myanmar, Somalia and Sudan. Notably the report named for the first time military forces and armed groups suspected of such sexual violence—organizations like Sudan's Lord's Resistance Army [War Child profile] and Congo's Federal Republican Forces. According to the report, one of the worst offenders in these regions was the national armed forces of the DRC. In Congo alone a total of 625 instances of sexual violence were reported—602 against women and 23 against men and boys in the conflict-affected regions of North Kivu, South Kivu and Orientale Province—and the DRC armed forces allegedly was responsible for almost half (261) of those cases. In the Ivory Coast there has been an increase in rape and gang rape targeting civilians during the country's recent post-election crises [JURIST news archive]—between January and September 2011, 478 cases of rape were documented in the country, and although 13 arrests were made, no convictions have taken place to date. While presenting the report in New York Wallstrom stressed that conflict-related sexual violence is a global risk, and that the terror of unarmed women facing armed men is age-old and universal. She added that rape can be a "strategic twist" in times of conflict as a tactic of war and terror, and the report notes that such violence often later acts as an impediment to post-conflict resolutions.

War crimes and conflict-related human rights violations represent an ongoing international concern. On Wednesday an International Criminal Court (ICC) [official website] pretrial chamber granted the request of Chief Prosecutor Luis Moreno-Ocampo [official profile] to expand his investigation of war crimes in the Ivory Coast [JURIST report] to incidents dating back to 2002. In April Human Rights Watch (HRW) [advocacy website] urged Ivory Coast to investigate human rights violations [JURIST report], including murder and rape, that were reportedly committed by opposing political forces last year. In March a military court in Congo sentenced 11 army officers [JURIST report] to prison for raping more than 20 women in 2010. A month earlier, the same court sentenced a DRC colonel to 20 years in prison [JURIST report] for being involved in mass rapes.




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US soldier formally charged for leaking information to Wikileaks
Michael Haggerson on February 24, 2012 10:57 AM ET

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[JURIST] Pfc. Bradley Manning [advocacy website; JURIST news archive] was formally charged with 22 counts, including aiding the enemy, under the Espionage Act [text] on Thursday. Manning declined to enter a plea [AP report] at the hearing. The maximum penalty Manning faces is life in prison. The government alleges that Manning transferred more than 700,000 confidential documents and video clips to Wikileaks [website; JURIST news archive], the largest intelligence leak is US history. Manning's defense argues that many others had access to his workplace computers in Iraq, he never should have been deployed to Iraq or entrusted with confidential information because he is emotionally troubled since he was barred from openly serving as a gay man, and the leaks did not hurt US national security.

The US military court referred Manning's case for court-martial [JURIST report] in February. A US Army panel of experts declared Manning competent to stand trial [JURIST report] in April. Manning's prosecution has sparked heated debate between defenders and critics. Those who support Manning's actions refer to him as courageous for acting as a whistleblower [advocacy petition] against government crime and corruption. He has been compared to famous US whistleblowers such as Frank Serpico and Daniel Ellsberg [personal websites], who leaked information regarding corruption in the New York Police Department and the Pentagon, respectively. Former Secretary of Defense Robert Gates [WP profile] has criticized the video [WSJ report], claiming it provides the public a view of warfare "as seen through a soda straw." He noted that public attention was not drawn to what was discovered by US ground forces following the helicopter gunfire, including AK-47s and rocket-propelled grenade launchers. He also said that terrorist organizations are made up of combatants who do not wear enemy uniforms. In August, lawyer Charles Lugosi [profile] wrote that Patriot Act provisions and criminal sanctions placed on whistleblowers like Manning violate the Constitution [JURIST commentary] and fundamentally challenge the legitimacy of the rule of law and American democracy. Lugosi noted that individuals, through websites and social networking, can expose modern injustice and raise the conscious awareness of the public to worthy causes and crusades.




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Ninth Circuit upholds California law requiring DNA samples from arrestees
Kevin Green on February 24, 2012 10:19 AM ET

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[JURIST] The US Court of Appeals for the Ninth Circuit [official website] ruled [opinion, PDF] Thursday that buccal mouth swabs may be used to extract DNA samples from any adult arrested or charged with a felony in California. The 2-1 decision upholds a 2004 voter-enacted provision [Proposition 69 materials] of the DNA and Forensic Identification Database and Data Bank Act of 1998 [text] requiring law enforcement officers to collect such samples from arrestees, a mandate challenged by the plaintiffs as a violation of Fourth Amendment [Cornell LII backgrounder] protections against unlawful search and seizure. Justice Milan Smith, Jr. assessed the constitutionality of the California law under the "totality of the circumstances" test—whether the government interest in collecting and testing a DNA sample without a warrant outweighs the intrusion on an arrestee's privacy. Smith wrote for the majority:
Given the arrestee's diminished privacy interests; the de minimis nature of the physical intrusion entailed in the taking of a buccal swab; the carefully circumscribed scope of the DNA information being extracted; the stringent limits on the manner in which that information may be used; and the well established law enforcement interest in obtaining arrestees' identifying information, and further, to deter future criminal acts and to exculpate innocent arrestees—the balance of interests tilts strongly in favor of upholding the constitutionality of the 2004 Amendment.
The court thus affirmed the lower court's denial of plaintiffs' motion for a preliminary injunction against the DNA Act.

Last month the Minnesota Supreme Court [official website] upheld a state statute requiring people convicted of crimes to submit a DNA sample, similarly ruling that such a mandate does not violate the Fourth Amendment [JURIST report] right to be free from unreasonable searches and seizures. In August a California appellate court struck down the 2004 Amendment [JURIST report] to the DNA Act, overturning a misdemeanor conviction for a felon's refusal to provide a DNA sample after confessing to arson. US Attorney General Eric Holder instructed federal prosecutors in November 2010 to use DNA evidence as much as possible [JURIST report], reversing the previous policy of the Bush administration. In May 2009 the US District Court for the Eastern District of California upheld the constitutionality of mandatory DNA collection [JURIST report] for all persons arrested or detained under federal authority. In March of that year 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].




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Egypt ex-president Mubarak defends himself in memo to court
Sung Un Kim on February 24, 2012 10:17 AM ET

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[JURIST] Former Egyptian president Hosni Mubarak [Al Jazeera profile; JURIST news archive] has told the court that he is saddened by "charges of unfair and baseless fabrications" and expressed his confidence in the Egyptian judicial system. Mubarak's remarks were published in form of a memo [text, in Arabic] by Tahrir newspaper on Thursday. Mubarak's remarks to the court became public a day after the defense counsel gave their closing remarks in the trial on charges of conspiracy to kill at least 840 protesters [JURIST report] during demonstrations in Egypt [JURIST news archive]. In his memo, Mubarak emphasized his lifetime dedication and service to the country after the assassination [JURIST report] of former Egyptian president Anwar Sadat [official website; JURIST news archive]. He continued to stress that he was the one who made sure that the country's national security, sovereignty and independence were established. After elaborating on such accomplishments, Mubarak accused the protesters of having provoked and attacked security officials. He closed his memo by expressing his confidence in the judicial system: "I have spent my life defending them. Hosni Mubarak is not someone to smear his military honor with ill-gotten wealth. Despite everything, I am totally confident in the fairness and justice of the Egyptian judiciary. I am totally confident in history's judgment, and totally confident in the great Egyptian people's judgment—free from the allegations of the tendentious and those seeking to sow sedition, and those receiving foreign funding." Lawyers confirmed that Mubarak handed a letter to the court during the trial, but the content of the letter is unknown.

The verdict for Mubarak's case was set for June 2 [JURIST report] on Wednesday. A day before the prosecution sought death penalty for Mubarak in its closing remarks consistent with their initial announcement [JURIST reports] in January. The parties began to present their cases in January after the court resumed the trial [JURIST reports] in December. The trial was adjourned twice, in October and August [JURIST reports].




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Cambodia genocide tribunal's legitimacy threatened by judge dispute: rights group
Michael Haggerson on February 24, 2012 10:12 AM ET

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[JURIST] The continuing dispute between Cambodia and the UN over the appointment of Judge Laurent Kasper-Ansermet to the Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website] threatens the legitimacy of the court [report, PDF; press release], the Open Society Justice Initiative [advocacy website] said Thursday. Kasper-Ansermet took over for Judge Siegfried Blunk who resigned [JURIST report] in October due to Cambodian political interference with the court. The report recommends that the UN continue to maintain its position supporting Kasper-Ansermet, insist the Royal Govenrment of Cambodia accept Kasper-Ansermet, provide financial and human resources assistance so that Kasper-Ansermet can perform his duties and continue to monitor Cambodia's compliance with the 2003 ECCC agreement [text, PDF].

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 UN refused to replace [JURIST report] Laurent Kasper-Ansermet in January. 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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Ninth Circuit rules 'Armenian genocide' victims not entitled to seek compensation
Saheli Chakrabarty on February 24, 2012 9:22 AM ET

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[JURIST] The US Court of Appeals for the Ninth Circuit [official website] ruled [opinion, PDF] Thursday that heirs of victims of the Armenian genocide [BBC backgrounder; JURIST news archive] in Turkey cannot sue German insurance companies for failed life insurance payments from German insurance companies. Descendants of the genocide victims residing in California brought the suit nearly a decade ago, following the passing of a California law [text] in 2000 extending the statute of limitations for unpaid life insurance claims. The Ninth Circuit found California Civil Procedure Code § 354.4 unconstitutional [JURIST report] in August 2009 because it interfered with foreign relations by recognizing the World War I-era killings of more than one million Armenians by Turkish soldiers as a genocide. The court reinstated the suit in December 2010 but decided in November to rehear the case en banc [JURIST reports]. The court held on Thursday that the state law impedes on the federal government's power to regulate foreign affairs:
In conclusion, section 354.4 expresses a distinct point of view on a specific matter of foreign policy. Its effect on foreign affairs is not incidental; rather, section 354.4 is, at its heart, intended to send a political message on an issue of foreign affairs by providing relief and a friendly forum to a perceived class of foreign victims. Nor is the statute merely expressive. Instead, the law imposes a concrete policy of redress for "Armenian Genocide victim[s]," subjecting foreign insurance companies to suit in California by overriding forum-selection provisions and greatly extending the statute of limitations for a narrowly defined class of claims. Thus, section 354.4 "has a direct impact upon foreign relations and may well adversely affect the power of the central government to deal with those problems." ... Section 354.4 therefore intrudes on the federal government’s exclusive power to conduct and regulate foreign affairs.
In response to the Ninth Circuit Court's decision, the executive director of the Armenian National Committee of America [advocacy website] expressed disappointment and pledged to continue working toward a "principled US policy in support of a truthful, just, and comprehensive resolution of the Armenian Genocide."

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




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Maryland Senate sends same-sex marriage bill to governor
Keith Herting on February 24, 2012 9:19 AM ET

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[JURIST] The Maryland Senate on Thursday approved the Civil Marriage Protection Act [SB241, PDF], which would legalize same-sex marriage [JURIST backgrounder] in the state. The legislation passed by a 25-22 margin in the Senate, having already been approved by the lower house [JURIST report] earlier in the week. The bill goes next to Governor Martin O'Malley (D) [official website] who has promised to sign it into law. In the build up to the Senate considering the act, O'Malley encouraged [official statement] the Senate to pass the bill:
Clergy and faith-based leaders, community leaders, civic organizations, civil rights groups, and citizens from across our State have reached the same conclusion that Americans in seven other states have reached—it is possible to protect individual civil marriage rights and religious freedom equally.
Though the bill is positioned to become law, hurdles remain which might derail the legislation from taking effect. The bill will not take effect until 2013 and may be subject to a popular approval if the groups who are currently fighting the bill are able to obtain 56,000 signatures to force a ballot referendum in November. To date, no state which has put same-sex marriage as a referendum for popular approval has had a majority of its citizens affirm the action.

Maryland joins a number of other states working to pass legislation that would allow same-sex couples to marry. Earlier this week, Washington state legalized same-sex marriage [JURIST report] after Governor Christine Gregoire signed the legislation. New Jersey is also considering legalizing same-sex marriage soon, although it currently has a civil union system in place. Governor Chris Christie conditionally vetoed a same-sex marriage bill [JURIST report] last week and called for a voter referendum to decide the issue, rather than the state legislature. In November, a lawsuit [JURIST report] was allowed to continue in New Jersey, which seeks declaratory and injunctive relief against the state civil union law as a contravention of both the Fourteenth Amendment and the New Jersey State Constitution. Same-sex marriage has also been legalized in New York, Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and the District of Columbia [JURIST reports].




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Guantanamo detainee agrees to testify for plea deal
Brandon Gatto on February 23, 2012 5:14 PM ET

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[JURIST] A Guantanamo Bay [JURIST backgrounder] detainee reached a plea agreement with military prosecutors on Wednesday that included an agreement to testify against other detainees. Under the agreement, detainee Majid Khan [GlobalSecurity profile], a 31-year-old former Baltimore-area resident, will be required to testify at the trials of other detainees in exchange for a greatly reduced sentence and eventual freedom. Khan has agreed to be available to testify at military commission trials over the next four years, and officials said he would then be eligible for a transfer to Pakistan. This is the first agreement to guarantee freedom for testimony offered to a Guantanamo detainee. The military believes Khan worked with with ties to Khalid Sheikh Mohammed [BBC profile], one of the designers of the September 11th terrorist attacks [JURIST backgrounder].

Khan was charged with war crimes [Washington Post report], including murder, attempted murder, spying, and providing material support for terrorism. Before being transferred to Guantanamo in 2006, both Khan's father and Khan's lawyer claimed in 2007 that the high-valued detainee had been subject to "state-sanctioned" torture while being held in secret CIA prisons [JURIST reports]. Khan was denied access to civilian legal counsel [JURIST report] by a federal judge in 2006 in an issue equally as controversial [JURIST comment]. Khan was captured in Pakistan in March 2003 and held in CIA prisons until he and 13 other high-profile detainees [DNI profiles, PDF; BBC profiles], including Sheikh Mohammed, were transferred to the US prison at Guantanamo Bay, Cuba.




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Italy violated human rights by transferring migrants to Libya: ECHR
Brandon Gatto on February 23, 2012 1:41 PM ET

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[JURIST] The European Court of Human Rights (ECHR) [official website] on Thursday ruled [text] that Italy violated international human rights laws when a group of Somalian and Eritrean migrants traveling from Libya were intercepted by Italian authorities and returned to Libya. The court found that Italy violated Article 3 of the European Convention on Human Rights [text, PDF] by exposing the migrants to the risk of ill-treatment in Libya and of repatriation to Somalia or Eritrea. Italy argued that Libya was a "safe country" at the time because it complied with its international commitments protecting refugees. The migrants had not expressed a desire to apply for asylum or any other form of international protection, so Italy also argued that they had no oblgiation to provide protection. The ECHR wholly rejected the argument:
[D]uring the period in question no rule governing the protection of refugees was complied with by Libya. Any person entering the country by illegal means was deemed to be clandestine and no distinction was made between irregular migrants and asylum seekers. Consequently, those persons were systematically arrested and detained in conditions that outside visitors, such as delegations from the UNHCR, Human Rights Watch and Amnesty International, could only describe as inhuman. [...] Those same reports clearly show that clandestine migrants disembarked in Libya following their interception by Italy on the high seas, such as the applicants, were exposed to those risks.
The court ordered Italy to pay the 24 migrants €15000 euros each in damages. The court additionally found violations under Article 4, Protocol No. 4's prohibition of collective expulsions, as well as the right to an effective remedy under Article 13. The judgment was welcomed [press release] by the UN Refugee Agency (UNRA) [official website] and Amnesty International in Italy [official website, in Italian], who called the decision a "milestone" for human rights [press release, in Italian].

In September 2009, Human Rights Watch (HRW) [advocacy website] released a report warning of Italy's potential international human rights violations [JURIST report]. The report found that Italy often intercepts migrants traveling by boat from Libya and fails to screen migrants for potential refugee status before returning them to Libya, thereby violating the European Convention on Human Rights and the principle of non-refoulement. In May 2009, Italy's lower house of parliament passed a bill [JURIST report] increasing penalties for illegal immigration, and the government also sent 227 migrants back to Libya without asylum hearings in violation of the UN Refugee Convention [text]. In addition to criticism by the UNRA, UN human rights experts have also expressed concern [JURIST report] for Italy's treatment of detained mirgrants and asylum seekers. The issues raised by HRW's 2009 report were similarly and raised previously in a 2006 report.




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ICC expands investigation of war crimes in Ivory Coast
Rebecca DiLeonardo on February 23, 2012 1:27 PM ET

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[JURIST] International Criminal Court (ICC) [official website] Chief Prosecutor Luis Moreno-Ocampo [official profile] on Wednesday was granted permission [decision, PDF; press release] by a pretrial chamber to expand his investigation of war crimes in the Ivory Coast to incidents dating back to 2002. Ocampo began his investigation [JURIST report] in October, focusing on alleged post-election violence [JURIST news archive] beginning in 2010. Ocampo requested to expand his investigation in light of evidence that government and rebel forces committed war crimes during an attempted coup in 2002. In its decision, the chamber concluded that there was a reasonable basis for the allegations:
The Chamber has referred to events identified by the Prosecutor that are examples of crimes which appear to have been committed against civilians by pro-government and rebel forces in [Ivory Coast], following the 2002 attempted coup. The Chamber has analysed a chronological sample of these incidents, and it has decided whether they potentially amount to a crime or crimes within the jurisdiction of the Court.
The court determined the post-election violence of 2010 was a part of ongoing unrest from the 2002 rebellion.

In December, former Ivory Coast president Laurent Gbagbo [BBC profile] appeared before the Pre-Trial Chamber III of the ICC [JURIST report] for an initial hearing. During the hearing the court verified Gbagbo's identity and ensured that he was informed of the four charges against him, including murder, persecution, inhumane acts, and rape and other forms of sexual violence allegedly committed during last year's post-election violence in the Ivory Coast. Gbagbo was taken into custody [JURIST report] in November for his upcoming appearance before the court. In October, Moreno-Ocampo traveled to the Ivory Coast [JURIST report] to investigate allegations of war crimes committed during post-election violence following the November 2010 elections.




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Council of Europe criticizes Germany castration law
Jamie Reese on February 23, 2012 1:26 PM ET

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[JURIST] The Council of Europe's (COE) [official website] Committee for the Prevention of Torture and Inhuman or Degrading Punishment (CPT) published a report [text] Wednesday rejecting the practice of surgical castration [COE press release] as a means of treatment for sexual offenders. In Germany, surgical castration as a means for treatment must be initiated at the request of the offender, be approved by an expert commission and include a medical examination of the requesting offender. The CPT fundamentally objects to the practice, noting: it has irreversible physical effects; surgical castration is not in conformity with recognized international standards; there is no guarantee the result sought will last and, given the context, free and informed consent is questionable. Although it is only applied in a few regions and in isolated cases, the report recommends that the practice be discontinued. The report also includes investigations into the allegations of ill-treatment during custody in police establishments, examinations into conditions of detention for immigration detainees, allegations of inter-prisoner violence and prisoners who were subjected to preventative detention. In response [PDF], the German federal government states that they are consider the CPT's recommendations.

Germany and the Czech Republic are the only two European countries that allow sex offenders to choose surgical castration as a treatment option. This month, Russian lawmakers approved stricter sex offender laws [JURIST report] that allow convicted offenders to voluntarily submit to chemical castration. This voluntary procedure was first proposed [JURIST report] last July, but debated by the majority party who wanted the procedure to be mandatory. Several countries including South Korea [JURIST report], Canada, Britain, France, Germany, Denmark, Israel, Norway, Sweden, Poland and some US states utilize chemical castration in some capacity.




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Virginia House passes watered-down abortion ultrasound bill
Katherine Getty on February 23, 2012 12:58 PM ET

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[JURIST] The Virginia House of Delegates [official website] passed a watered-down version of a controversial ultrasound [JURIST news archive] bill [SB 484] Wednesday, which requires women seeking an abortion have a transabdomenal ultrasound before going through with the procedure. The bill differs from the controversial one passed by the Senate earlier this month [JURIST report] which originally required women to have a transvaginal ultrasound. The controversy surrounding the bill [WP report] has grown in recent weeks and the changes to the bill came at the behest of Governor Bob McDonnell [official website] who requested the non-invasive alternative [press release] in the face of protests from media and pro-choice advocates. The bill is in a perilous place as Senator Jill Holtzman Vogel [official website], the bill's sponsor, said Thursday that she would rather strike the bill entirely than allow it to pass with the new amendments. This bill is widely seen as the next step in the process towards outlawing abortions in the state. Also Thursday, the Virginia Senate put on hold personhood legislation [JURIST report] that would define life as beginning at conception.

Virginia is not the first state to pass ultrasound legislation, and similar rules have drawn various results when challenged in the court system. In January, the US Court of Appeals for the Fifth Circuit [official website] lifted an injunction [JURIST report] on a Texas law [JURIST report] that requires women to have a sonogram before undergoing an abortion, allowing the law to be enforced. In October, a judge for the US District Court for the Middle District of North Carolina [official website] issued a preliminary injunction [JURIST report], blocking part of the state's abortion law that required a physician to perform an ultrasound and describe the images to the patient. In March 2010, the Supreme Court of Oklahoma [official website] ruled [JURIST report] that a state law imposing broad restrictions on abortion, including the requirement of an ultrasound prior to the procedure, violated that state's constitution.




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UN extends Lebanon tribunal for three more years
Katherine Getty on February 23, 2012 12:39 PM ET

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[JURIST] UN Secretary-General Ban Ki-Moon [official profile] on Tuesday extended the mandate for the Special Tribunal for Lebanon (STL) [official website; JURIST news archive] for the next three years. The independent tribunal was set up by the Lebanese government to try the suspected perpetrators of the 2005 assassination of former Lebanese prime minister Rafik Hariri [BBC profile; JURIST news archive] and 22 other members of his entourage. The Tribunal is composed of professional judges selected internationally and includes senior members of the Lebanese judiciary. Ban's spokesperson says that this reaffirmation cements the UN's continuing support [UN News Centre report, news release] to help Lebanon find justice from the attacks. The president of the tribunal, Judge David Baragwanath, has previously promised to conclude the STL "as swiftly as fairness allows." The STL has faced great difficulty [JURIST report] trying to arrest the members of Hezbollah in Lebanon, the believed perpetrators of the attack, where the Iran-backed Shiite militia Hezbollah is the country's most powerful political force.

Earlier this month the STL announced that it would try four of the accused assassins in absentia [JURIST report], the first time this has happened since the Nuremberg Trials. Those proceedings, however, will not begin for more than four months to allow the defense time to plan. Last August the STL announced that it would investigate three additional bomb attacks [JURIST report] that may be connected to the February 2005 attack that killed Hariri. Earlier that month, the STL unsealed the indictment [JURIST report] against the four individuals accused of the assassination. Also in August the STL president made a public plea [JURIST report] for the men to turn themselves in.




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State attorneys general concerned about Google privacy policy
Rebecca DiLeonardo on February 23, 2012 12:25 PM ET

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[JURIST] The National Association of Attorneys General (NAAG) [official website] on Thursday sent a letter [text, PDF; press release] to Google, singed by 36 state attorneys general, expressing concerns about the company's new privacy policy [corporate website; press release]. The new policy, which is scheduled to go into effect on March 1, allows a user's information to be shared among different Google products, including YouTube, Gmail, and Google Maps. In the letter, the NAAG said they found the new policy "troubling" because it appears to invade consumer privacy without a realistic alternative:
Consumers have diverse interests and concerns, and may want the information in their Web History to be kept separate from the information they exchange via Gmail. Likewise, consumers may be comfortable with Google knowing their Search queries but not with it knowing their whereabouts, yet the new privacy policy appears to give them no choice in the matter, further invading their privacy. It rings hollow to call their ability to exit the Google products ecosystem a "choice" in an Internet economy where the clear majority of all Internet users use—and frequently rely on—at least one Google product on a regular basis.
The letter urges Google to allow consumers to opt out of the new policy, expressing particular concern for Android phone users who use Google products. The NAAG has requested a meeting with Google CEO Larry Page [NYT backgrounder] as soon as possible.

Google's new privacy policy has faced heavy criticism from advocates concerned with consumer privacy. Last week, three US representatives sent a letter [text, PDF] to the Federal Trade Commission (FTC) [official website] asking it to look into [JURIST report] Google's new privacy policy. Earlier this month, the Electronic Privacy Information Center (EPIC) [advocacy website], a consumer privacy group, filed a lawsuit [JURIST report] asking that the FTC block Google's proposed privacy policy changes. Last month, Google issued a letter [JURIST report] in response to concerns raised by members of Congress regarding consumer privacy rights as impacted by the new policy. In January, US Representative Edward Markey (D-MA) [official website] and seven other lawmakers sent a letter [text, PDF] to Google CEO Larry Page containing 11 questions regarding consumer privacy rights [JURIST report] as affected by Google's new privacy policies.




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Federal judge finds Washington emergency contraception law unconstitutional
Jamie Reese on February 23, 2012 12:22 PM ET

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[JURIST] A judge for the US District Court for the Western District of Washington [official website] ruled [opinion, PDF] Wednesday that requiring pharmacies to sell Plan B and other emergency contraceptives violates the pharmacists' constitutional right to freedom of religion. Under Washington law [WAC § 246-869-010] pharmacies are required to deliver lawfully prescribed medications or devices and to distribute drugs and devices approved by the US Food and Drug Administration (FDA) [official website] in a timely manner. Judge Ronald Leighton wrote, "[T]he rules are facially constitutional—they do not on their face require or permit discriminatory conduct. It is in their operation that the rules force a pharmacy to choose between compliance with the delivery and stocking rules and employing a conscientious objector as a pharmacist." The state argued that the requirements were legal because they applied neutrally to all pharmacies and served a government interest. The pharmacies urged, and the court agreed, that the true goal was to suppress religious objections as evidenced by the secular exemption language in the law. This ruling did not strike down the law, and the state remains free to enforce the law [AP report] against violations by other pharmacies.

In 2007, a district court decision blocked the law [JURIST report] ruling that it violated pharmacies' and pharmacists' First Amendment [Cornell LII backgrounder] rights. That decision was overruled [JURIST report] in 2009 by the US Court of Appeals for the Ninth Circuit [official website] because the injunction was overbroad. Plan B [product website; JURIST news archive] has been the subject of considerable legislative and judicial activity since the FDA approved access to the drug in 2006. Last December, a federal judge for the US District Court for the Eastern District of New York [official website] revived a six-year-old lawsuit [JURIST report] over the Plan B contraceptive. In March 2009, a federal judge in New York overturned an FDA policy [JURIST report] that limited the nonprescription availability of the drug to women over the age of 18. In March 2008, a federal judge in the US District Court of the District of Columbia [official website] dismissed [JURIST report] a lawsuit brought by a physicians' group against the FDA seeking to overturn approval of the over-the-counter sale of Plan B. In October 2007, Illinois pharmacists considered a settlement [JURIST report] to a dispute over a state law that would have required them to dispense the Plan B pill regardless of their moral objections to the contraception.




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Philippines ex-president pleads not guilty to election fraud
Jennie Ryan on February 23, 2012 11:34 AM ET

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[JURIST] Former Philippines president Gloria Macapagal-Arroyo [BBC backgrounder, JURIST news archive] pleaded not guilty on Thursday to charges of electoral fraud. Arroyo is accused of rigging senate elections [AP report] in favor of the candidates she supported in 2007. Arroyo was formally charged in December with corruption and election fraud during her presidency. She was arrested the day after on a warrant issued for the charges. Arroyo also faces charges filed in a second criminal complaint [JURIST report] that she approved a $329-million national broadband network deal with the Chinese company ZTE Corporation [corporate website] in return for millions of dollars in kickbacks in 2008. If Arroyo is convicted she could face life in prison.

Following Arroyo's arrest on charges of election fraud and corruption, she and her husband tried to leave the country after the Philippines Supreme Court allowed them to travel [JURIST report] despite the pending charges, but were denied transit until they received an official copy of the court order. The arrest warrant effectively overrides the court's travel permit. The former Philippines president has been under hospital arrest [JURIST report] since November 2011. She is reportedly being treated for a bone ailment. In July 2010, current Philippines President Benigno Aquino [BBC profile] signed an executive order [JURIST report] to set up a "truth commission" to investigate allegations that the outgoing administration engaged in corruption and rights violations.




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Indiana union members sue to block right-to-work legislation
Jennie Ryan on February 23, 2012 11:07 AM ET

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[JURIST] Members of the Indiana chapter of an electrical engineers union filed suit on Wednesday in the United States District Court for the Northern District of Indiana [official website] seeking to block implementation of the state's new right-to-work legislation [HB 1028 text]. The suit, filed by the International Union of Operating Engineers Local 150 [official website], argues that the law is unconstitutional because it violates the Equal Protection [text] clause by treating public employees differently than others. The union claims that the law unfairly mandates that union members pay for representation of workers who choose to opt out of paying union fees. Union workers have gathered in Indianapolis throughout January and early February to protest against the legislation [press release] which was signed into law [NYT report] by Governor Mitch Daniels (R) [official website] on February 1.

Restrictive collective bargaining laws have been advanced in several states recently. In a public referendum in November, Ohio voters rejected [JURIST report] a bill passed in March [JURIST report] which would have impacted Ohio's 400,000 public workers by limiting their ability to strike and collectively bargain for health insurance and pensions. Ten Wisconsin unions filed a lawsuit [JURIST report] in federal court in June challenging the state's new collective bargaining law. According to the plaintiffs, the Wisconsin bill discriminates among groups of public employees and eliminates basic union rights, like bargaining, organizing and associating. In July, a judge for the US District Court for the District of Idaho [official website] issued a preliminary injunction [JURIST report] blocking the enforcement of an Idaho anti-union law [SB 1007] that bans a union program that subsidizes employment for its members. The law, called the Fairness in Contracting Act, prohibits union programs used by construction workers unions that pool portions of union wages on a voluntary basis to subsidize union labor to enable union members to be hired at the collectively bargained salary.




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Federal judge finds Defense of Marriage Act unconstitutional
Kevin Green on February 23, 2012 9:56 AM ET

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[JURIST] A judge for the US District Court for the Northern District of California [official website] ruled [opinion, PDF] Wednesday that the federal Defense of Marriage Act (DOMA) [text; JURIST news archive] is unconstitutional. The plaintiff, Karen Golinski, filed suit [JURIST report] against the US Office of Personnel Management for refusing extend health insurance benefits to her same-sex spouse. Judge Jeffrey White ruled that statutory classifications based on sexual orientation should be subject to heightened scrutiny and that the legislation was not "substantially related to an important governmental objective." As a result, White concluded that DOMA violated Golinski's right to Equal Protection of the law under the Fifth Amendment [text] to the US Constitution. The court issued a permanent injunction against the defendants ordering them not to impede Golinski's wife from enrolling in the family health insurance coverage.

The district court's ruling is the most recent development in the debate regarding the constitutionality of DOMA and its repeal. The US Senate Judiciary Committee [official website] voted to repeal DOMA [JURIST report] in November, marking the first time a Congressional group has voted to repeal the law banning federal recognition of same-sex marriage. In a similar case this past October, a disabled Navy veteran filed a notice of appeal [JURIST report] with the Court of Appeals for Veterans Claims [official website] for denying her partner a share of her disability benefits under DOMA. The Department of Veterans Affairs [official website] allegedly told the veteran she could not receive benefits because her spouse was a woman. In March 2011, congressional Democrats introduced the Respect for Marriage Act [text], which was intended to repeal DOMA [JURIST report], but it has not yet passed. The Congressional action follows an announcement from US President Barack Obama last year that he would continue to fight for the repeal [JURIST report] of DOMA, and last year's announcement by the US Department of Justice (DOJ) [official website] that it will no longer defend the constitutionality [JURIST report] of Section 3 of DOMA in court cases challenging the provision.




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Supreme Court hears arguments on false claims of military honors
Julia Zebley on February 23, 2012 9:49 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 United States v. Alvarez [transcript; JURIST report], the court heard arguments on the constitutionality of the Stolen Valor Act (SVA) [text]. Xavier Alvarez was convicted under the SVA in 2007 after he announced at a public water district board meeting that he was a retired Marine and had received the Congressional Medal of Honor. His attorney argued that that the law criminalized, at its base, a white lie: "The Stolen Valor Act criminalizes pure speech in the form of bare falsity, a mere telling of a lie. It doesn't matter whether the lie was told in a public meeting or in a private conversation with a friend or family member. And the law punishes false claims to a military award regardless of whether harm results or even is likely to result in an individual case." The Solicitor General argued that the law was narrowly drawn to protect the substantial government interest of upholding the standard of military honors. Since the case came before the court out of a Ninth Circuit decision striking down the law, there has been a Tenth Circuit decision [JURIST reports] that upheld the law. JURIST assistant editor Kimberly Bennett analyzed the act [JURIST op-ed] and also argued that it is unconstitutional.

The court also considered Blueford v. Arkansas [transcript, PDF; JURIST report] to decide whether the Double Jeopardy [Cornell LII backgrounder] clause prevents the re-prosecution of a greater offense if a jury deadlocks on a lesser-included offense. Alex Blueford's attorney contends that jeopardy attaches to all of the jury's determinations, even if dead-locked on one. He argued that the foreperson's announcement establishes the verdict, and thus is what jeopardy attaches to. When the foreperson announced Blueford was not guilty on capital murder, it implied not guilty on all charges, even though the jury was dead-locked on first degree murder. He also argued that there was no "manifest necessity" to try on the same charges. The state of Arkansas argued that since the jury was free to re-visit the charges after dead-lock, clearly double jeopardy did not attach.




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UN accuses Syria of human rights violations
Saheli Chakrabarty on February 23, 2012 9:45 AM ET

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[JURIST] The UN-appointed Independent International Commission of Inquiry on Syria on Wednesday accused Syria of violating international human rights law [report, PDF] after finding that Syrian forces are engaging in torture and killings under orders from high level government officials. Military forces under Syrian President Bashar al-Assad [BBC profile; JURIST news archive] have been shelling opposition strongholds in the city of Homs for 20 straight days and reportedly killed more than 80 people on Wednesday, including two journalists [NYT report]. The UN report, based on 369 interviews with victims, witnesses, defectors and other Syrian insiders, described some of the findings:
The commission received credible and consistent evidence identifying high- and mid-ranking members of the armed forces who ordered their subordinates to shoot at unarmed protestors, kill soldiers who refused to obey such orders, arrest persons without cause, mistreat detained persons and attack civilian neighbourhoods with indiscriminate tank and machine-gun fire. In some cases, they gave explicit orders to commit crimes, in others they used more general terms (e.g. use any force necessary) that, in the circumstances, left no room for interpretation. The commission verified that, in some locations, individual army officers ordered the indiscriminate shelling of civilian neighbourhoods in urban areas such as Hama, Al Ladhiqiyah, Dar'a and Homs.
The commission of inquiry, headed by Paulo Pinheiro, found that rebel forces led by the Free Syrian Army had also committed abductions and killings, though lesser in scale. The report is a follow-up to a November report [JURIST report], which had similar findings. An assembly of Western and Arab powers plans to challenge al-Assad [news report, Reuters] on Friday to provide humanitarian access to civilians.

The growing unrest in Syria has drawn international attention. Last week, both UN High Commissioner for Human Rights Navi Pillay [official profile; JURIST news archive] and UN Secretary-General Ban Ki-moon [official profile] called for an end to the violence in Syria, with Pillay asking the UN Security Council to refer the situation in Syria [JURIST reports] to the International Criminal Court (ICC). Pillay urged an investigation of Syrian government and military officials for possible crimes against humanity. The UN Children's Fund (UNICEF) [official website] claimed earlier in February that the past 11 months of violence in Syria have led to the deaths of hundreds of children [JURIST report]. In January, Ban demanded [JURIST report] that the Syrian government end violence against civilians. The OHCHR reports that more than 5,000 people have died since anti-government protests began last March.




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Supreme Court rules officers entitled to qualified immunity on defective warrants
Julia Zebley on February 23, 2012 8:45 AM ET

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[JURIST] The US Supreme Court [official website] ruled 6-3 [opinion, PDF] Tuesday in Messerschmidt v. Millender [JURIST report] that police officers continue to have qualified immunity if a search warrant is later found invalid. Chief Justice John Roberts, writing for the majority, noted that the bar set in United States v. Leon [opinion] is a high standard, where officers cannot be reasonably expected to question a magistrate's writing of a warrant. Roberts stated that the breadth of the search, and the officers following that edict, was not sufficient to defeat qualified immunity:
The question in this case is not whether the magistrate erred in believing there was sufficient probable cause to support the scope of the warrant he issued. It is instead whether the magistrate so obviously erred that any reasonable officer would have recognized the error. The occasions on which this standard will be met may be rare, but so too are the circumstances in which it will be appropriate to impose personal liability on a lay officer in the face of judicial approval of his actions. Even if the warrant in this case were invalid, it was not so obviously lacking in probable cause that the officers can be considered "plainly incompetent" for concluding otherwise.
In dissent, Justices Sonia Sotomayor and Ruth Bader Ginsburg argued that since the original warrant was issued over a domestic dispute, it was obviously overbroad to command officers to search for guns and gang-affiliation signs, and thus the officers were on notice.

The court declined to reconsider the qualified immunity standard set in Leon and Malley v. Briggs [opinions], which created the current qualified immunity standard. The opinions held that officers are entitled to qualified immunity, and evidence obtained should not be suppressed, so long as the warrant is not "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." The court also did not create an exception for lawful gun owners. JURIST Contributing Editor Stephen Halbrook, counsel for the National Rifle Association [official websites], argued before the court and in commentary for JURIST [JURIST comment] that police infringed on gun ownership rights by seizing guns of all those present without verifying that the suspect was in the area. Police officers entered on a warrant that authorized search for any guns or gang-related material. The plaintiffs also argued that this violated their Fourth Amendment [text] rights and thus the warrant was invalid and they were allowed to sue for civil damages.




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Egypt judge sets Mubarak verdict date
Sarah Posner on February 22, 2012 3:02 PM ET

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[JURIST] An Egyptian judge on Wednesday scheduled the verdict date for former Egyptian president Hosni Mubarak [Al Jazeera profile; JURIST news archive] for June 2, with Mubarak declining to address the court before the sentencing and verdict are set to take place. Mubarak could be put to death if convicted in what could be the first guilty verdict [AP report] by the leader's own country in Arab Spring uprisings. Mubarak, who spent almost 30 years in power, is accused of assisting in the killing of protesters during the 18-day uprising that led to over 800 people being killed, mostly by security forces. The prosecution began presenting its case [JURIST report] against Mubarak last month. Mubarak faces charges of complicity by ordering the killings of at least 840 protesters [JURIST report] early last year during the Egyptian revolution [JURIST news archive] that led to Mubarak stepping down from office [JURIST report].

The chief prosecutor in the case against Mubarak in his closing remarks [JURIST report] on Monday again asked the presiding judge, Ahmed Refaat, to give the death penalty [JURIST report] to Mubarak, 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. Mustapha Suleiman, the head of the five-person prosecution team, said that Mubarak was responsible for the killings because he was president at the time and failed to use his power to protect the Egyptian people. Mubarak's trial started [JURIST report] in August 2011 and has been making slow progress. The trial resumed in December in the Egyptian court after a two-month adjournment [JURIST reports] allowing 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.




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Supreme Court overrules Montana high court riverbed title decision
Maureen Cosgrove on February 22, 2012 3:02 PM ET

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[JURIST] The US Supreme Court [official website] ruled unanimously [opinion, PDF] Thursday in PPL Montana v. Montana [SCOTUSblog backgrounder] that the Montana Supreme Court erred in failing to use a well-settled approach to determine whether the water beds at issue could be considered navigable. PPL Montana (PPL) [corporate website], which owns a hydroelectric power dam on the Missouri River, brought the challenge after the state Supreme Court held [opinion, PDF] that the title to the riverbeds passed to Montana when it became a state in 1889 and that the riverbeds are public trust lands under Article X, Section 11 [text] of the Montana Constitution. The Supreme Court of Montana ordered PPL to pay $41 million in back rent and more in future rent for use of the riverbeds. Petitioner PPL argued that the Montana Supreme Court "deviat[ed] from well-settled principles of Federal navigability law" by failing to focus on specific river segments and considering modern instead of historical use of the river. The US Supreme Court agreed with the petitioners. Pursuant to the "equal footing" doctrine, a state gains title to the navigable water beds within its borders and may "allocate and govern those lands according to state law." The court held that, in failing to implement the "segment-by-segment" approach to determining navigability of riverbeds, the Montana Supreme Court reached a decision inconsistent with well-established law.

JURIST Guest Columnist Richard Ausness recently argued [JURIST op-ed] that the segmentation approach to navigability adopted by the Supreme Court in United States v. Utah, and ultimately applied in PPL Montana v. Montana, "strikes a better balance between the interests of riparian owners and that of the states than the "highway of commerce" approach advocated by the State of Montana."




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Rights commission urges Ecuador president to suspend sentencing in libel suit
Sarah Posner on February 22, 2012 2:21 PM ET

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[JURIST] The Inter-American Commission on Human Rights (IACHR) [official website] urged Ecuadorian President Rafael Correa [official website, in Spanish; BBC profile] and his administration on Tuesday to postpone the sentencing of El Universo [official website, in Spanish] managers convicted of libel until after a hearing between the parties in March. The IACHR issued an injunction urging the Ecuador government to suspend sentencing [WSJ report] until arguments are made by both parties on March 28. El Universo is the second largest newspaper in Ecuador. Two of the four men, Cesar and Nicolas Perez, have already fled to Miami. The lawsuit has been heavily criticized by Correa's opposition.

Last week, Carlos Perez, one of four El Universo managers convicted of libel [JURIST report] against Correa, was granted asylum by Panama. The announcement that Carlos Perez had been granted asylum came shortly after Ecuador's highest court, the National Court of Justice, upheld the conviction against the four El Universo managers. The men were sentenced to three years in prison each and fined USD $40 million in total. Correa indicated that he was surprised that Panama granted the men asylum because, in his view, they were common criminals and not persecuted political activists. He also stated on Thursday that he was considering pardoning the men. The El Universo officials stated that they would bring an appeal to the IACHR to fight the verdict.




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Supreme Court remands case challenging California Medicaid law
Maureen Cosgrove on February 22, 2012 2:05 PM ET

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[JURIST] The US Supreme Court [official website] ruled [opinion, PDF] 5-4 on Thursday in Douglas v. Independent Living Center of Southern California [SCOTUSblog backgrounder] that the parties to the suit could return to the US Court of Appeals for the Ninth Circuit [official website] to argue in the first instance whether Medicaid recipients and providers could maintain Supremacy Clause actions challenging a California state law that reduces reimbursement rates. The court initially heard arguments [JURIST report] on whether the Supremacy Clause preempts Medicaid recipients and providers from bringing a suit challenging the California statute. Medicaid providers—doctors, hospitals and pharmacies—were angered by a series of cutbacks by the California legislature reducing reimbursement payments in an attempt to handle the state's financial crisis. A month after the court heard oral arguments in the case, the Centers for Medicare & Medicaid Services (CMS) [official website], the federal agency in charge of administering Medicaid, approved the state statutes as consistent with the federal law. The court indicated that proceeding with a Supremacy Clause action could undermine the review processes delegated to federal administrative agencies under the Administrative Procedure Act (APA) [text].

Chief Justice John Roberts authored a dissenting opinion, in which he was joined by Justices Clarence Thomas, Samuel Alito and Antonin Scalia, saying the Supremacy Clause challenges should have been barred because "[n]othing in the Medicaid Act allows providers or beneficiaries (or anyone else, for that matter) to sue to enforce" the reimbursement provision. The responsibility for enforcing the provision, he concluded, is vested in the CMS. The case is consolidated with Douglas v. Santa Rosa Memorial Hospital and Douglas v. California Pharmacists Association.




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EU to ask high court to evaluate anti-piracy agreement
Rebecca DiLeonardo on February 22, 2012 1:47 PM ET

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[JURIST] The European Commission [official website] said Wednesday that they will seek guidance [press release] from the European Court of Justice (ECJ) [official website] before moving forward with the ratification of the Anti-Counterfeiting Trade Agreement (ACTA) [text, PDF], a controversial international anti-piracy agreement. Commissioner Karel De Gucht said she hoped the guidance of the ECJ would ease the concerns of European citizens who worry the agreement could lead to censorship. The decision to put ratification on hold comes after a number of European groups expressed opposition [AP report]. De Gucht is confident that the ruling of the ECJ will calm these fears:
In recent weeks, the ratification process of ACTA has triggered a Europe-wide debate on ACTA, the freedom of the internet and the importance of protecting Europe's Intellectual Property for our economies. ... [L]et me be clear: ACTA will change nothing about how we use the internet and social websites today—since it does not introduce any new rules. ACTA only helps to enforce what is already law today. ACTA will not censor websites or shut them down; ACTA will not hinder freedom of the internet or freedom of speech. Let's cut through this fog of uncertainty and put ACTA in the spotlight of our highest independent judicial authority: the European Court of Justice.
The European Commission unanimously passed the ACTA in December 2011. It must be ratified by the EU national governments to go into effect.

Recently, there has been a surge in government attention to copyright issues. Last month, the US House of Representatives [official website] announced it will postpone hearings [JURIST report] on the Stop Online Piracy Act (SOPA) [text, PDF] in the midst of national protest. Also last 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 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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Rights group urges US to investigate Yemen ex-president Saleh
Max Slater on February 22, 2012 1:05 PM ET

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[JURIST] The International Federation for Human Rights (FIDH) [advocacy website] sent a letter [text, PDF] to US officials Tuesday urging an investigation into the crackdown against protesters by forces loyal to former Yemeni president Ali Abdullah Saleh [official website, in Arabic; JURIST news archive]. In a deal brokered by Middle Eastern leaders in November, Saleh agreed to give up power in exchange for receiving immunity from prosecution. Saleh has been in the US since January 29 receiving medical treatment, during which the US has given him diplomatic immunity. In a press release [text] on Tuesday, FIDH argued that because Saleh's forces have committed serious human rights violations, Saleh should not be shielded by immunity:
International law and conventions stipulate that immunity cannot be granted to perpetrators of grave human rights violations such as torture. As a signatory to the Convention Against Torture and War Crimes Statute, and as a key member of the UN Security Council, the United States has an obligation to investigate the serious and credible allegations of torture and other widespread violations brought against Saleh.
The US Department of State (DOS) [official website] did not respond directly to FIDH's request to investigate Saleh but did issue a statement [text] on Tuesday praising the Yemeni people for electing a new president.

Saleh has been at the center of controversy over the past year. Two weeks ago, Human Rights Watch (HRW) [advocacy website] declared that the US and Arab states are not bound [JURIST report] by a decision to grant Saleh immunity. In January, Yemeni officials amended a law [JURIST report] that would have granted full immunity to Saleh and his aides to limit his aides' immunity to politically motivated crimes. In April, Saleh agreed to step down from power [JURIST report] and give control of Yemen's government to his deputies. Last March, the Yemeni parliament, at Saleh's request, enacted emergency laws [JURIST report] designed to end anti-government protests. Earlier in March, Saleh attempted to placate protesters by promising to create a new constitution [JURIST report] guaranteeing parliamentary and judicial freedoms.




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Journalist rights group concerned about press freedom
Rebecca DiLeonardo on February 22, 2012 12:53 PM ET

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[JURIST] The Committee to Protect Journalists (CPJ) [advocacy website] has released its annual Attacks on the Press report [text], expressing concern about increased censorship of journalists worldwide in 2011. The CPJ criticized the growing trend of government censorship, especially Internet censorship. It indicated that imprisonment of journalists has gone up 20 percent worldwide in the last year, particularly in the Middle East and North Africa. Among the imprisoned, most face anti-state or censorship charges. The group called for a global movement to end censorship, which it argues threatens the safety of individuals within a country, and strengthens authoritarian governments and criminal enterprises.

Last May, journalism rights group Reporters without Borders (RSF) [advocacy website] released [JURIST report] its annual list of predators of press freedom [materials; press release], which included the heads of state of several countries in the Middle East and North Africa. In April 2011, the US Department of State (DOS) [official website] released its 2010 Country Reports on Human Rights Practices [materials]. The reports cited many of the same leaders and organizations [JURIST report] as the RSF for violating freedom of the press. RSF's 2010 report [JURIST report] also listed many of the same offenders.




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New Jersey court reverses partial dismissal of same-sex marriage suit
Dan Taglioli on February 22, 2012 12:20 PM ET

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[JURIST] The New Jersey Superior Court [official website] on Tuesday reinstated one count [opinion, PDF] of a marriage equality lawsuit [complaint text, PDF; case materials] against the state's civil union system, reversing the court's own decision to dismiss the count on a motion by the state Attorney General [official website]. Judge Linda Feinberg in November had allowed the case to continue on the premise that civil unions were unconstitutional under state law [state constitution, text], but dismissed three counts [JURIST report] that claimed violations of federal guarantees of due process and equal protection under the Fourteenth Amendment [Cornell LII backgrounder]. Feinberg reversed her dismissal of one count [AP report] after the plaintiffs filed a motion for reconsideration:
Defendants challenge the premise that alleged unequal treatment of same-sex couples, under the Civil Union Act, constitutes state action under the Fourteenth Amendment's Equal Protection Clause ... Plaintiffs allege the Civil Union Act and its enforcement by certain state officials, who are named defendants, violates the Equal Protection Clause of the Fourteenth Amendment. At this juncture, the court is satisfied there is sufficient state action to permit the claim under the Federal Equal Protection Clause to proceed.
The lawsuit was filed by seven same-sex couples and several of their children, and is expected to ultimately decided by the New Jersey Supreme Court.

The court's ruling came four days after New Jersey Governor Chris Christie [official website] conditionally vetoed [JURIST report] a bill to legalize same-sex marriage in the state. The Marriage Equality and Religious Exemption Act [bill, PDF] was passed by the New Jersey State Assembly [official website] by a vote of 42-33, and was subsequently approved by the State Senate [JURIST report] 24-16. Approval of the legislation marks a shift from the legislature's previous position concerning same-sex marriage, as a similar bill was defeated [JURIST report] in the state Senate last year. Last week the State of Washington became the eighth US jurisdiction to legalize same-sex marriage, which is also legal in Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and the District of Columbia [JURIST reports]. Civil unions or domestic partnerships are currently legal in Maine, Illinois, Delaware, Hawaii, California, Wisconsin, Nevada, Oregon and Washington and await ratification in Rhode Island [JURIST reports].




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West Africa stability threatened by organized crime, drug trafficking: UN
Jennie Ryan on February 22, 2012 12:07 PM ET

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[JURIST] UN Secretary-General Ban Ki-moon [official profile] called Tuesday for an increase in efforts to curb transnational organized crime, drug trafficking and piracy in West Africa. In an address [UN News Centre report] to the UN Security Council [official website], the Secretary-General said he was "particularly concerned about reports stating that terrorist groups, such as Al-Qaida in the Islamic Maghreb, have formed alliances with drug traffickers." Additionally, the Secretary-General expressed concern that instability in Libya, a growing food crisis, and other conflicts throughout the region could worsen the situation. According to the Executive Director of the UN Office on Drugs and Crime (UNODC) [official website], "multi-dimensional and strategic approach that works at the local, national and regional levels" is necessary to combat these forces [press release] and preserve stability in the region.

The UN has been involved in efforts to stabilize the West African region following the recent unrest in Libya and the Middle East. Earlier this month, the UN Support Mission in Libya (UNSMIL) [official website] welcomed the new electoral law [JURIST report] adopted by the National Transitional Council (NTC) [official website, in Arabic; JURIST news archive]. The draft of the electoral law sets out procedures for the upcoming election to choose a national assembly. This finalization and adoption of the new electoral law is a significant step for Libya in establishing a democratic system after the end of the Muammar Gaddafi [BBC backgrounder; JURIST news archive] regime and the Libyan conflict [JURIST backgrounder]. Last month, Libya was criticized for the allegations of torture and human rights violations [JURIST report]. Although the NTC expressed its commitment to human rights and legal reformation, UN Security Council was still concerned due to the lack of NTC's control over the revolutionary brigades.




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Egypt court rules parliamentary election process unconstitutional
Dan Taglioli on February 22, 2012 11:33 AM ET

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[JURIST] The High Administrative Court of Egypt [JURIST news archive] ruled Monday that the voting system used in the recent parliamentary election was unconstitutional. The election was held over three stages from late November to January, and its the elaborate voting system apportioned parliamentary seats between political parties and individuals, with two thirds of the seats going to political parties. Judge Magdy el-Agaty determined the ratio to be in violation of the constitution [Reuters report], that half of the seats should have been held for individuals. Additionally, Agaty stated that political parties should not have been permitted to field candidates for the seats reserved for individuals. During the elections the political parties reportedly haggled over how many candidates they would field for those seats. It is not clear whether the ruling will lead courts to invalidate the results of the elections, widely viewed as Egypt's freest vote in decades. Agaty has referred parts of the country's election law to the Supreme Constitutional Court [official website] for a final judgment.

Egypt has been ruled by the military since the overthrow [JURIST report] of former president Hosni Mubarak [Al Jazeera profile; JURIST news archive] last February. The new parliament is supposed to name a 100-member council to draw up a constitution, paving the way for presidential elections, but the court's ruling could mire that process and other parliament functions. Last month Human Rights Watch (HRW) [advocacy website] called on the newly elected parliament to pursue an agenda to reform nine areas of Egyptian law [JURIST report] that impede freedom and restrict rights. Meanwhile the prosecution in the case against Mubarak is seeking the death penalty for the former president, whose trial resumed in December in an Egyptian court after a two-month adjournment [JURIST reports] allowing 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 defense is scheduled to give closing remarks this week, after which the judge will set the date [JURIST report] to announce his verdict.




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Maldives president orders probe into violence accompanying rise to power
Jennie Ryan on February 22, 2012 11:33 AM ET

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[JURIST] Maldives President Mohammed Waheed Hassan [official profile] appointed a commission on Wednesday to investigate the violence that accompanied his rise to power. Hassan assumed power of Maldives when former president Mohamed Nasheed resigned [JURIST report] on February 7 following weeks of protests. Nasheed claims he was forced from office in a coup. Supporters of Nasheed took to the streets after his ouster and burned down government buildings in violent demonstrations. The three-member commission was appointed [AP report] by Hassan following criticism from international organizations including the UN. The UN Development Program [official website] called for an investigation [press release] into the violence after a visit to the country by UN Assistant Secretary-General for Political Affairs Oscar Fernandez-Taranco early this month.

The Maldives has faced ongoing unrest since January when the military arrested the chief justice [JURIST report] of the nation's criminal court, Judge Abdulla Mohamed, after he released a detained opposition leader. Last month, the UN called for Mohamed's release [JURIST report] days after the Maldives Minister of Foreign Affairs [official website] asked the UN to help them resolve [JURIST report] what they called a judicial system failure. The same week, a group of Maldives lawyers submitted [JURIST report] the case to the International Criminal Court (ICC) [official website], calling Mohamed's continued detention a violation of the International Convention on the Protection of all Persons against Enforced Disappearance [text]. In the country's first democratic elections in 2008, Nasheed defeated longtime political opponent Maumoon Abdul Gayoon [BBC profile], ending his 30-year rule. During street protests, some worried that the violence may have been a coup attempt by Gayoon, but the government has denied such claims [Reuters report].




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Proposition 8 supporters ask for new hearing before entire Ninth Circuit
Katherine Getty on February 22, 2012 10:43 AM ET

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[JURIST] Proponents of Proposition 8 [text; JURIST news archive], California's same-sex marriage ban, on Tuesday requested a new hearing [petition, PDF] before the full US Court of Appeals for the Ninth Circuit [official website]. The request comes after a three-judge panel voted 2-1 to overturn the law [JURIST report], finding that it violated the Equal Protection Clause of the Fourteenth Amendment [Cornell II backgrounder]. The Protect Marriage Coalition [advocacy website] has alleged [news release] that the decision was at odds with other jurisdictions throughout the country. Asking for the reconsideration blocks the decision from taking effect immediately. The coalition believes that the ruling violates the United States Constitution:
The panel majority's ruling that Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment also contravenes binding Supreme Court precedent holding that the traditional definition of marriage does not violate that Amendment. In Baker v. Nelson, the Supreme Court unanimously dismissed, "for want of substantial federal question," an appeal presenting the same question decided by the panel: whether the Equal Protection Clause of the Fourteenth Amendment requires a State to recognize same-sex relationships as marriages.
The appeal will only be accepted if a majority of the 25 judges who sit on the Ninth Circuit agree to review the decision. The next step would be an appeal to the US Supreme Court. Some legal analysts say it is unlikely that the Supreme Court would take the case because the majority opinion focused mainly on California law, not the national standard.

The Ninth Circuit struck down Proposition 8 earlier this month, ruling that the voter-approved [JURIST report] constitutional amendment violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the US Constitution. The Ninth Circuit initially heard arguments on Proposition 8's constitutionality in December 2010, but then asked the California Supreme Court [JURIST reports] to rule on whether defendants had standing to appeal. The high court ruled in November that they did have standing [JURIST report].




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Federal judge delays Utah immigration ruling until Supreme Court rules on Arizona law
Katherine Getty on February 22, 2012 10:15 AM ET

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[JURIST] Judge Clark Waddoups of the US District Court for the District of Utah [official website] said Tuesday that he would delay his ruling [order, PDF] on Utah's immigration law [HB 497, PDF] until the US Supreme Court rules on the similar Arizona Immigration Law. Waddoups believes that it is in the best interest of the state and the court to wait until the Supreme Court offers more guidance [Salt Lake Tribune report] on the issue. The immigration bill was originally signed into law [JURIST report] by Governor Gary Herbert [official website] last March. The law has been likened to an Arizona Immigration law [SB 1070 materials, JURIST news archive], which requires police to check the immigration status of anyone arrested for an alleged felony or serious misdemeanor. Waddoups stated that while there were differences between the Arizona and the Utah laws, there are enough similarities to warrant waiting for that ruling to come down:
Although Arizona's law is different from Utah's law in several respects, some aspects are sufficiently similar that the Supreme Court's ruling likely will inform this court in its decision. Because this case addresses significant constitutional issues, the court does not believe it would be helpful to the parties for the court to rule on the present motions before it receives the additional guidance from the Supreme Court. It therefore will reserve ruling until the Supreme Court has issued its decision.
The Supreme Court's decision on the Arizona law is expected later this spring.

Waddoups temporarily blocked the Utah law in May, less than 24 hours after it took effect, following a challenge [JURIST reports] by the American Civil Liberties Union of Utah, the National Immigration Law Center [advocacy websites] and other plaintiffs. The US Department of Justice (DOJ) [official website] has also filed suit [complaint, PDF; press release] alleging that clauses in the law are preempted by the federal government's jurisdiction over immigration. The DOJ has filed similar suits challenging immigration laws in Arizona, Alabama and South Carolina [JURIST reports]. Federal judges have enjoined portions of each of those laws, and an appeal of the Arizona law is currently pending before the Supreme Court [JURIST report]. The DOJ is reviewing similar immigration legislation passed recently in Indiana and Georgia [JURIST reports].




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DC Circuit affirms dismissal of Guantanamo detainee wrongful death suit
Jerry Votava on February 22, 2012 9:42 AM ET

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[JURIST] The US Court of Appeals for the District of Columbia Circuit [official website] on Tuesday affirmed [opinion, PDF] the dismissal of wrongful death claims by the families of two former Guantanamo Bay [JURIST backgrounder] detainees, Yasser Al-Zahrani of Saudi Arabia and Salah Al-Salami of Yemen, who committed suicide while in detention in 2006. The families filed a civil lawsuit against the US and 24 government officials, including former US defense secretary Donald Rumsfeld [JURIST news archive], claiming they were responsible for arbitrary detention, torture and the death of Al-Zahrani and Al-Salami. Ruling on an appeal [JURIST report] brought by the Center for Constitutional Rights (CCR) [advocacy website], the court held that they lacked subject matter jurisdiction due to the jurisdictional bar created by the Military Commissions Act of 2006 (MCA) [text, PDF]. The court held:
that [MCA] deprives this court of jurisdiction over appellants' claims. We further hold that the Supreme Court did not declare [MCA] unconstitutional in Boumediene and the provision retains vitality to bar those claims. We therefore conclude that the decision of the District Court dismissing the claims should be affirmed, although for a lack of jurisdiction under Rule 12(b)(1) rather than for failure to state a claim under Rule 12(b)(6).
Al-Zahrani was said to have hung himself [JURIST report] with his bed sheets and clothing.

A judge for the US District Court for the District of Columbia District [official website] granted the motion for dismissal in Feburary 2010 and later denied a motion for reconsideration [JURIST reports] filed after new evidence of eye witness accounts from soldiers suggested the men died while being tortured. The judge denied the reconsideration despite the new evidence saying it does not change the reasoning for dismissal that the "special needs of foreign affairs must stay" the court's action. The claim was originally brought [JURIST report] under the Alien Tort Claims Act [text], which provides that district courts have original jurisdiction to hear claims for torts "committed in violation of the law of nations or a treaty of the United States." The defendants moved to dismiss the suit based on § 7 of the MCA, which removes the ability of federal courts to hear challenges to the treatment of aliens who have been "properly detained" as enemy combatants. In 2008, officials from the Naval Criminal Investigative Service [official website] said notes found in the clothes of two detainees indicated that they were seeking martyrdom. Military investigations of the suicides began [JURIST report] immediately after the men were found in their cells, and the military quickly rejected calls for independent civilian investigations. The military similarly rejected requests by the governments of Yemen and Saudi Arabia [JURIST reports] to reform the investigation process.




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Maryland Senate committee approves same-sex marriage bill
Jerry Votava on February 22, 2012 8:38 AM ET

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[JURIST] The Maryland State Senate [official website] Judicial Proceedings Committee [official website] approved a bill [SB241 text] on Tuesday that would permit the legal marriage of same-sex couples within the state. This bill is a cross-filing of HB438 which was approved [JURIST report] by the Maryland House of Delegates [official website] last week. The bill is expected to move to debate by the full Senate [WP report] after the Committee approved the measure with a vote of 7-4. A similar bill was proposed last year in Maryland but failed to pass the House [JURIST report] after it was approved by the Senate. If approved by all parties, Maryland would become the eighth state, along with the District of Columbia, to allow same-sex marriage. Governor Martin O'Malley [official website] has promised to sign the bill [WP report] once it passes the Senate.

Maryland joins a number of other states working to pass legislation that would allow same-sex couples to marry. Earlier this week, Washington state legalized same-sex marriage [JURIST report] after Governor Christine Gregoire signed the legislation. New Jersey is also considering legalizing same-sex marriage soon, although it currently has a civil union system in place. Governor Chris Christie conditionally vetoed a same-sex marriage bill [JURIST report] last week and called for a voter referendum to decide the issue, rather than the state legislature. In November, a lawsuit [JURIST report] was allowed to continue in New Jersey, which seeks declaratory and injunctive relief against the state civil union law as a contravention of both the Fourteenth Amendment and the New Jersey State Constitution. Same-sex marriage has also been legalized in New York, Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and the District of Columbia [JURIST reports].




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Israel to release Palestinian prisoner on hunger strike
Brandon Gatto on February 22, 2012 7:07 AM ET

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[JURIST] A Palestinian held without trial ended his 66-day hunger strike on Tuesday after Israeli authorities announced his release as part of a deal that avoids judicial review of the Israeli detention policy. The prisoner, Khader Adnan, is a 33-year-old member of the militant group Islamic Jihad who had been refusing food since his arrest in the West Bank in mid-December. He broke his hunger protest when he was promised to be released [Reuters report] in April if no new evidence is brought against him. A spokeswoman for the Israel Ministry of Justice [official website] confirmed that an agreement was reached and that Adnan will be released April 17. The deal came at a time shortly after Adnan had begun intravenous feeding and was believed to be in deteriorating health. This issue in particular has drawn concern from Amnesty International (AI) [advocacy website], which called the April release "insufficient" [press release] and urged Israeli authorities to release him immediately to allow proper medical treatment. Adnan's protest is the longest hunger strike by a Palestinian detainee in history.

On Monday the Israel Supreme Court [official website] announced that it would hear Adnan's hunger strike case [JURIST report] despite a military judge rejecting his appeal in early February. The strike began and continued as a protest of Israel's policy of detaining Palestinian prisoners without bringing formal charges or presenting evidence and without a trial. These policies have long been criticized by human rights groups, including AI, which just last week called for the end of administrative detention in Israel [press release]. Earlier this month, Human Rights Watch (HRW) [advocacy website] similarly urged [JURIST report] Israel to amend its policies that forbid Palestinians from traveling through and living in Gaza and the West Bank.




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Supreme Court hears arguments on real estate fees, interpreters
Jaclyn Belczyk on February 21, 2012 3:58 PM ET

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[JURIST] The US Supreme Court [official website] heard oral arguments [day call, PDF] in two cases Tuesday. In Freeman v. Quicken Loans, Inc. [transcript, PDF; JURIST report] the court heard arguments on whether Section 8(b) of the Real Estate Settlement Procedures Act (RESPA) [text] prohibits a real estate settlement services provider from only charging an unearned fee when the fee is divided between two or more parties. The US Court of Appeals for the Fifth Circuit held [opinion, PDF] that the RESPA prohibits only kickbacks and referral fees, not unearned fees by a sole provider of settlement services. Therefore, charges that Quicken imposed on the appellants for loan discount fees and a loan processing fee are not prohibited by Section 8(b) of the RESPA. Counsel for the petitioners argued:
For decades, the agency Congress charged with administering the Real Estate Settlement Procedures Act has construed that statute as prohibiting a lender from accepting a charge for a real estate settlement service it didn't provide, whether it accepts that charge directly from a consumer or indirectly through another service provider, and whether it shares that fee with another provider or keeps it all for itself. That interpretation is eminently reasonable and is entitled to deference.
Counsel for the US government argued as amicus curiae on behalf of petitioners.

In Taniguchi v. Kan Pacific Saipan, Ltd. [transcript, PDF; JURIST report], the court heard arguments on whether translating written documents is enough to be considered an "interpreter" under 28 USC § 1920 [text] for matters of compensation. The US Court of Appeals for the Ninth Circuit determined [opinion, PDF] that translating documents is acting as an interpreter under the law. Counsel for the petitioner presented "six categories of authority demonstrating that the work of an interpreter under 28 USC § 1920(6) is limited to spoken communication. Counsel for respondent argued for a broad definition of the word "interpreter."




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Supreme Court clarifies 'aggravated felony' for immigrant removal purposes
Hillary Stemple on February 21, 2012 2:30 PM ET

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[JURIST] The US Supreme Court [official website] ruled 6-3 [opinion, PDF] on Tuesday in Kawashima v. Holder [SCOTUSblog backgrounder] that, under the Immigration and Nationality Act [8 USC § 1101 et seq.], the making of false tax returns is a crime involving fraud or deceit, which can result in deportation, when the government suffers a loss of more than $10,000. Petitioners Akio and Fusako Kawashima are natives and citizens of Japan who were living in California as lawful permanent residents. Petitioners were charged with, and pleaded guilty to, filing, and aiding and abetting in filing, a false statement on a corporate tax return. An immigration judge ordered the deportation of the petitioners, after determining the convictions were "aggravated felonies" within the meaning of the Immigration and Nationality Act. The Board of Immigration Appeals affirmed the decision, which was ultimately upheld [opinion] US Court of Appeals for the Ninth Circuit. In an opinion authored by Justice Clarence Thomas, the Supreme Court affirmed:
The language of [the statute] is clear. Anyone who is convicted of an offense that "involves fraud or deceit in which the loss to the victim or victims exceeds $10,000" has committed an aggravated felony and is subject to deportation pursuant to 8 USC § 1227(a)(2)(A)(iii). The elements of willfully making and subscribing a false corporate tax return, in violation of 26 USC § 7206(1), and of aiding and assisting in the preparation of a false tax return, in violation of 26 USC § 7206(2), establish that those crimes are deportable offenses because they necessarily entail deceit.
Justice Ruth Bader Ginsburg authored a dissenting opinion, in which she was joined by Justices Stephen Breyer and Elena Kagan. The court's ruling resolved a split among the circuits regarding whether filing a false tax return was an aggravated felony under the Immigration and Nationality Act.

During oral arguments [JURIST report], lawyers for the petitioners argued that filing a false tax return does meet the definition of "fraud or deceit" because the US government does not have to prove any intent to deceive in order to establish that a false tax return has been filed. Several justices were skeptical of petitioners' position that an intentional lie does not necessarily mean an intent to deceive.




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Pakistan to seek arrest of ex-president Musharraf
Sung Un Kim on February 21, 2012 1:52 PM ET

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[JURIST] Pakistan authorities pledged Tuesday to arrest former president Pervez Musharraf [BBC profile; JURIST news archive] for his alleged involvement in the assassination of former prime minister Benazir Bhutto [BBC obituary; JURIST news archive]. Interior Minister Rehman Malik [official website] said [CNN news report] that the "government is moving for his red notice" which is an Interpol [official website] international arrest warrant. Interpol did not yet provide any comments concerning this issue. Bhutto was assassinated in 2007 in a suicide attack at a rally in Rawalpindi after she returned from her exile [JURIST reports] in Great Britain and Dubai.

In November, an anti-terrorism court in Pakistan indicted seven people [JURIST report] in assassination of former prime minister. Among the indicted people were two senior police officers who allegedly were negligent in providing adequate security [Al Jazeera report] to Bhutto. The other five men were charged with criminal conspiracy. At that time, Musharraf was not charged despite allegation that he did play a part of the assassination. However, his property was seized [JURIST report] by the Federal Investigation Agency (FIA) [official website] after an order rendered by Pakistani Judge Shahid Raffique due to Musharraf's failure to respond to multiple subpoenas. Those documents were issued because the FIA accused [JURIST report] Musharraf in the assassination of Bhutto. In 2010, an independent UN commission blamed [JURIST report] Pakistani government and police forces for the assassination because they "lacked a comprehensive security plan."




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UN rights experts urge Syria to release detained activists
Max Slater on February 21, 2012 1:46 PM ET

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[JURIST] A panel of experts representing the UN Office of the High Commissioner for Human Rights (OHCHR) [official website; JURIST news archive] on Tuesday denounced [press release] the arrest of 16 people by Syrian forces last Thursday, calling for their release. On Thursday afternoon, Syrian forces raided the offices of a human rights organization in Syria, arrested 16 people there, blindfolded them and took them to an airport. The UN panel, which included the Special Rapporteurs on human rights defenders, freedom of expression, torture and arbitrary detention, called for the immediate release of all the arrested persons: "The Syrian authorities should end all acts of harassment against human rights defenders and release all those arbitrarily arrested and detained." Juan Mendez, the Special Rapporteur on torture, feared that the arrested persons were at risk of ill treatment at the hands of Syrian forces: "I am deeply concerned about [the sixteen arrestees'] physical and mental well-being particularly in the current context of the ongoing violence in Syria." The raid and arrest occurred on the same day that the UN General Assembly [official website] passed a resolution [JURIST report] condemning the violence in Syria.

The growing unrest in Syria has drawn copious international attention recently. Last week, both UN High Commissioner for Human Rights Navi Pillay and Secretary General Ban Ki-Moon [JURIST reports] called for an end to the violence in Syria, with Pillay asking the UN Security Council to refer the situation in Syria to the International Criminal Court (ICC). Pillay urged an investigation of Syrian government and military officials for possible crimes against humanity. The UN Children's Fund (UNICEF) claimed earlier in February that the past 11 months of violence in Syria have led to the deaths of hundreds of children [JURIST report]. In January, Ban demanded [JURIST report] that the Syrian government end violence against civilians. The OHCHR reports that more than 5,000 people have died since anti-government protests began last March.




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Italy court orders trial for accused Somali pirates
Brandon Gatto on February 21, 2012 1:44 PM ET

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[JURIST] The Tribunale Ordinario di Roma [official website, in Italian] on Monday ordered nine alleged Somali pirates [JURIST news archive] to be tried in Italy's first international piracy trial on charges of attacking the Montecristo, an Italian cargo vessel, off the coast of Somalia last year. Currently being held in Italy, five of the suspected pirates will be judged in the criminal division of Rome's Third Circuit Court, the Settore Penale della Terza Corte d'Assise [official website, in Italian] on March 23, while the remaining four will be tried in the Juvenile Court, the Tribunale dei Minori [official website, in Italian], on the same day. The Somalis face charges [Reuters report, in Italian] including kidnapping, piracy and possession of weapons for terrorism, and could receive up to 20 years in prison if convicted. Although two Pakistanis were also with the alleged pirates during the attack, they were released [La Repubblica report, in Italian] based on their testimony to authorities.

The Montecristo was seized on October 10 about 620 miles off the east coast of Somalia while en route to Yemen. Though the nine Somalis took 23 prisoners in the Gulf of Aden, all 23 were rescued [BBC report] approximately 24 hours later by US and British troops in a NATO Ocean Shield [official website] operation. Similarly, six accused Somali pirates went on trial in Paris [JURIST report] last November. There, the men were accused [CNN report] of capturing the Carre-d'As IV in the Gulf of Aden in 2008 and holding a French couple hostage for two weeks. This was also France's first piracy trial, with three additional trials excepted to follow. With increasing threats of international maritime piracy [JURIST news archive], UN Assistant Secretary-General for Political Affairs Taye-Brook Zerihoun [official profile] urged the international community last October to increase efforts to combat Somali piracy [JURIST report] after the UN Security Council adopted [JURIST report] a resolution [text] aimed at making piracy a crime and establishing anti-piracy courts [webcast]. Italy is among a limited number of countries that have recently tried to prosecute piracy, including France, Germany, Seychelles, the Netherlands, Mauritius, Yemen, Somalia, Spain and the US [JURIST reports].




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Supreme Court declines to expand definition of custodial for Miranda purposes
Hillary Stemple on February 21, 2012 1:21 PM ET

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[JURIST] The US Supreme Court [official website] ruled 6-3 [opinion, PDF] Tuesday in Howes v. Fields [SCOTUSblog backgrounder] that a US Court of Appeals for the Sixth Circuit categorical rule that all private questioning of prisoners about outside events is per se custodial, requiring Miranda warnings to be given, is not clearly established by Supreme Court precedent. The court also declined to establish a rule that interrogations are per se custodial for the purposes of Miranda, when a prisoner is questioned in private about events occurring outside the prison. Respondent Randall Fields was questioned by investigators about a child sex-abuse case while he was in the county jail serving a 45-day sentence for disorderly conduct. A lower court found that Fields did not have to be given his Miranda rights because the investigators were questioning him about a separate crime. This decision was reversed [opinion] by the Sixth Circuit, holding that Miranda is necessary anytime the suspect is isolated from the rest of the jail inmates in a situation where the suspect would be likely to incriminate himself. In an opinion delivered by Justice Samuel Alito, the Supreme Court reversed:
In short, standard conditions of confinement and associated restrictions on freedom will not necessarily implicate the same interests that the Court sought to protect when it afforded special safeguards to persons subjected to custodial interrogation. Thus, service of a term of imprisonment, without more, is not enough to constitute Miranda custody.
The court further stated that the determination of custody should focus on all features of the interrogation including the manner and language summoning the prisoner to the questioning and the manner in which the interrogation occurs. Justice Ruth Bader Ginsburg filed an opinion concurring with the majority as to whether Supreme Court precedent clearly establishes a categorical rule for what constitutes custody but dissented on the issue of whether Fields was in custody for Miranda purposes. Ginsburg was joined in her opinion by Justices Stephen Breyer and Sonia Sotomayor.

During oral arguments, attorneys representing the state of Michigan argued [JURIST report] that since Fields invoked his right to return to his cell, despite being confined in jail, a reasonable person in jail being taken to an interrogation room would have understood it was an interrogation and Miranda was unnecessary. They further argued against the per se rule that was created by the Sixth Circuit rather than applying the traditional "all the circumstances" test for Miranda. Fields' attorney contended that he felt no freedom to leave and that in a prison or jail situation, a reasonable person would not feel a freedom to leave without being read Miranda rights in that situation.




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Federal judge strikes down part of Nebraska city immigration law
Max Slater on February 21, 2012 1:02 PM ET

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[JURIST] A judge for the US District Court for the District of Nebraska [official website] on Monday struck down [order, PDF] a provision in Fremont, Nebraska law that denies housing permits to illegal immigrants, saying the ordinance violates federal law. In the ruling, Judge Laurie Smith Camp also upheld part of the Fremont law that requires employers to verify the citizenship of workers they hire. Camp concluded that the housing provision violated the Fair Housing Act [text]:
It is apparent ... that once the City's legitimate interest in knowing the immigration status of its residents is satisfied, the revocation of occupancy permits does nothing to further that legitimate interest. Accordingly, the "viable alternative means" available to the City to achieve its legitimate policy objectives without discriminatory effects is to stop short of revoking occupancy permits if the immigration status of a resident is verified, whether that status is lawful or unlawful. Accordingly, the Court finds that the enforcement ... of the Ordinance, prohibiting the harboring of illegal aliens, providing for the revocation of occupancy licenses, and providing for certain penalties following the revocation of occupancy licenses, violates the Fair Housing Act.
It is unclear if the city of Fremont plans to appeal the ruling.

The city of Fremont suspended enactment of the ordinance [JURIST report] until the district court decided the issue. In November 2010, the Nebraska Supreme Court [official website] declined to rule on the ordinance [JURIST report]. In August 2010, Camp ruled [JURIST report] that the Nebraska Supreme Court should be the first forum to address the ordinance. In July 2010, the first lawsuits challenging the ordinance were filed [JURIST report] by the American Civil Liberties Union (ACLU) and the Mexican American Legal Defense and Educational Fund (MALDEF) [advocacy websites]. Fremont voters originally passed the ordinance [JURIST report] in June 2010.




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Somalia allowing recruitment of child soldiers: HRW
Sung Un Kim on February 21, 2012 1:02 PM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] on Tuesday criticized [press release] Somalia's Transitional Federal Government (FTG) [CFR backgrounder] and African Union forces (AMISOM) [advocacy website] for failing to stop the unlawful recruitment of children as soldiers, forced marriage and rape. HRW released a report [text, PDF], "No Place for Children: Child Recruitment, Forced Marriage, and Attacks on Schools in Somalia," based mainly on interviews with Somali refugees as well as TFG, UN and African Union [advocacy website] officials. HRW found that al-Shabaab [CFR backgrounder; NCTC backgrounder] has increased its effort to forcibly recruit children since mid-2010. Even when these children succeed in escaping, TFG allegedly detains them for being supporters of al-Shabaab instead of rehabilitating them. While boys are facing death in the battlefield as "human shields," girls are facing cruel treatment of another sort: "Abducted girls are assigned cooking, cleaning, and other domestic duties in the camps. Al-Shabaab uses girls and young women not only for support for combat operations, but also for rape and forced marriage to fighters." Due to al-Shabaab's increased attacks on schools and abduction of children, most of the schools in Somalia are currently closed and those still open provide only below minimum education:
Children have nowhere to hide. Al-Shabaab has abducted them wherever they congregate: schools, playgrounds, football fields, and homes. Schools in particular have been attractive targets—14 of the 21 child escapees from al-Shabaab whom Human Rights Watch interviewed were taken from schools or on their way to school.
HRW urged parties to comply with its recommendations including stopping all child recruitment, transferring captured children to rehabilitation centers, protecting schools from attacks and ensuring that officials responsible for abuses be held to account.

Somalia [DOS backgrounder; JURIST news archive] on Friday reached an agreement [JURIST report] at the Garowe II Constitutional Conference [Garowe Online report] to organize diplomats and establish a federal constitution. However, Somalia has been under heavy criticism for human rights violations. In August HRW accused [JURIST report] parties in the Somalia conflict to be involved in abuses of citizens and urged them to cease all of such activities immediately. In July, Amnesty International (AI) [advocacy website] release [JURIST report] a report which alleged that children continued to be victims of the conflict. In the 2010 Country Reports on Human Rights Practices [materials] however, noted [JURIST report] progress in Somalia for human rights. In 2009, UN High Commissioner for Human Rights Navi Pillay [official profile] said [JURIST report] that human rights violations committed during Somalian conflicts may amount to war crimes [press release].




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Egypt prosecutor seeks death penalty for Mubarak in closing remarks
Andrea Bottorff on February 21, 2012 11:13 AM ET

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[JURIST] The chief prosecutor in the case against former Egyptian president Hosni Mubarak [Al Jazeera profile; JURIST news archive] in his closing remarks on Monday again asked the presiding judge, Ahmed Refaat, to give the death penalty [JURIST report] to Mubarak, 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. Mustapha Suleiman, the head of the five-person prosecution team, said that Mubarak was responsible for the killings [CNN report] because he was president at the time and failed to use his power to protect the Egyptian people. The prosecution began presenting its case [JURIST report] against Mubarak last month. Mubarak faces charges of complicity by ordering the killings of at least 840 protesters [JURIST report] early last year during the Egyptian revolution [JURIST news archive] that led to Mubarak stepping down from office [JURIST report]. The defense is scheduled to give closing remarks on Wednesday, after which Refaat will set the date [JURIST report] to announce his verdict.

Mubarak's trial started [JURIST report] in August 2011 and has been making slow progress. The trial resumed in December in the Egyptian court after a two-month adjournment [JURIST reports] allowing 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 they 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 2011, but left early and refused to be cross-examined by counsel of the victims. In December 2011 the court also rejected the prosecution's motion [JURIST report] for a new judge and fined the prosecution for making the request. The motion was based on the allegation that Refaat was showing bias in favor of Mubarak [AFP report].




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Supreme Court to rule on University of Texas affirmative action policy
Jaclyn Belczyk on February 21, 2012 10:23 AM ET

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[JURIST] The US Supreme Court [official website] granted certiorari [order list, PDF] Tuesday in Fisher v. University of Texas [docket; cert. petition, PDF] to determine whether the court's decisions interpreting the Equal Protection Clause [Cornell LII backgrounder] of the Fourteenth Amendment, including Grutter v. Bollinger [opinion; JURIST symposium], permit the University of Texas at Austin's (UT) use of race in undergraduate admissions decisions. Petitioner Abigail Noel Fisher, a Caucasian student, was denied undergraduate admission to UT in 2008 and subsequently challenged the admissions policy, which allows the university to consider race and ethnicity during admissions processing. The US Court of Appeals for the Fifth Circuit ruled last year that the policy did not violate [JURIST report] Fisher's rights to equal protection under the Fourteenth Amendment and federal civil rights statutes, affirming a lower court decision. The appeals court concluded that UT could rely on race as one of the "special circumstances" used to evaluate student applicants because race is one of many factors the university considers.

Also Tuesday the court agreed to hear Lozman v. City of Riviera Beach, Florida [docket; cert. petition, PDF] to determine whether a floating structure that is indefinitely moored, receives power and other utilities from shore and is not intended to be used in maritime transportation or commerce constitutes a "vessel" under 1 USC § 3 [text], thus triggering federal maritime jurisdiction [DOJ backgrounder]. The US Court of Appeals for the Eleventh Circuit ruled that it was a vessel.

The court also allocated time for oral arguments in the health care appeal [JURIST report] as follows:

On the Anti-Injunction Act issue (No. 11-398), the Court-appointed amicus curiae is allotted 40 minutes, the Solicitor General is allotted 30 minutes, and the respondents are allotted 20 minutes.

On the Minimum Coverage Provision issue (No. 11-398), the Solicitor General is allotted 60 minutes, respondents Florida, et al. are allotted 30 minutes, and respondents National Federation of Independent Business, et al. are allotted 30 minutes.

On the Severability issue (Nos. 11-393 and 11-400), the petitioners are allotted 30 minutes, the Solicitor General is allotted 30 minutes, and the Court-appointed amicus curiae is allotted 30 minutes.

On the Medicaid issue (No. 11-400), the petitioners are allotted 30 minutes, and the Solicitor General is allotted 30 minutes.

Finally, the court issued per curiam decisions in two cases. In Wetzel v. Lambert [opinion, PDF], the court vacated a Third Circuit decision to grant a writ of habeas corpus to a Pennsylvania death row prisoner. In Marmet Health Care Center v. Brown [opinion, PDF], the court vacated the decision of the West Virginia Supreme Court of Appeals which had held unenforceable all predispute arbitration agreements that apply to claims alleging personal injury or wrongful death against nursing homes.




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Syria publishes draft constitution prior to national referendum
Andrea Bottorff on February 21, 2012 9:33 AM ET

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[JURIST] The Syrian Arab News Agency on Monday published the country's new draft constitution [text], nearly one week before Syrian President Bashar al-Assad [BBC profile; JURIST news archive] has scheduled a referendum [JURIST report] on the constitution. The draft constitution omits a clause in the old document that upheld the Ba'ath Party as the ruling party in the country, an omission that could lead to a multiparty political system. The draft also calls for the democratic election of presidents, who will be limited to two consecutive seven-year terms, and prohibits the formation of political parties based on religion, tribe, race, class, profession or gender. The Preamble to the draft constitution emphasizes the need for peace and describes the proposed constitution as:
[A] system of fundamental principles that enshrines independence, sovereignty and the rule of the people based on election, political and party pluralism and the protection of national unity, cultural diversity, public freedoms, human rights, social justice, equality, equal opportunities, citizenship and the rule of law, where the society and the citizen are the objective and purpose for which every national effort is dedicated.
The draft constitution arrives as the international community continues to plea for a stop to the violence in Syria. The referendum on the new constitution is set to take place on February 26.

The growing unrest in Syria has drawn abundant international attention. The UN General Assembly [official website] voted last week to condemn Syria through a non-binding resolution [JURIST report]. The resolution supported a plan [text, PDF, in Arabic] advanced by the Arab League [official website] that aims to bring the situation in the country to a close as quickly as possible by encouraging al-Assad to step down. The same day, UN Secretary General Ban Ki-Moon [official profile] called on Syria to end to violence against civilians and possible crimes against humanity [JURIST report]. Ban said that estimates show over 5,000 people have been killed since violence started 11 months ago. Earlier last week, UN High Commissioner for Human Rights Navi Pillay [official profile] called for the UN Security Council to refer the situation in Syria [JURIST report] to the International Criminal Court.




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Charges dropped against Bahrain opposition leader
Julia Zebley on February 21, 2012 8:35 AM ET

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[JURIST] A court in Bahrain's capital, Manama, on Monday dropped the last charges against former member of parliament and Al-Wefaq [party website, in Arabic] leader Matar Matar [official twitter]. Two previous charges were dropped against Matar in August: "calling for regime change" and "spreading rumors linked to pro-democracy protests." The final charge, "undermining public security by assembling with a group of more than five people," was dropped on Monday, although Matar had been free since August. Matar claimed to be tortured in prison [BBC report] at that time, although state-run news media stated Matar's lawyer denied this [BNA report]. Although Matar was released on the charges stemming from his opposition actions, last month state media for Bahrain announced that new measures will be taken against protesters [JURIST report] in light of recent violence against police officers. 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

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. 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 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 reports] 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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Ecuador court rejects injunction on Chevron fine
Julia Zebley on February 21, 2012 7:40 AM ET

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[JURIST] The Provincial Court of Justice of Sucumbios in Lago Agrio, Ecuador denied an arbitration decision [interim order, PDF] by The Hague Permanent Court of Arbitration (PCA) [official website; case materials] on Friday, forwarding an appeal by Chevron [corporate website] appeal to the Supreme Court of Ecuador. The decision intended to temporarily enjoin the recently upheld $18 billion fine [JURIST report] from any international efforts of collection. The interim injunction would last until the PCA makes its final arbitration decision. The Provincial Court of Justice rejected this approach, stating that Ecuadorian citizens' human rights supersede international trade law [Ecuador Times report]. They also allowed Chevron's appeal [JURIST report] to ascend to the Supreme Court of Ecuador. The injunction is supposed to be upheld by all countries that are signatories to The Hague Convention, but plaintiffs insist they will continue to pursue their collection efforts in other courts, including the US Second Circuit Court of Appeals [JURIST report].

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 and the Amazon river. Chevron has argued that the damages award violates Ecuador's constitution because the court failed to correct or punish alleged fraud and corruption committed by plaintiffs' lawyers. Also, Chevron contended that because it inherited the case from its takeover of 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 upheld in January [JURIST report] by a three-judge panel of the Provincial Court of Justice of Sucumbios. Though the fine was initially set at $8.6 billion [JURIST report], it 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], 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.




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UN SG welcomes Somalia constitutional conference agreement
Jamie Davis on February 20, 2012 2:10 PM ET

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[JURIST] UN Secretary-General Ban Ki-moon [official website] on Sunday applauded the Somali parties [statement] who have reached a "crucial political agreement" on Friday at the Garowe II Constitutional Conference [Garowe Online report]. According to Ban, the agreement provides the steps that Somalia [DOS backgrounder] must take in order to go about "ending the transition and putting in place a constitutional order in a new federal Somalia." The agreement also includes a provision that requires a minimum of 30 percent women to be included in the Independent Electoral Commission, the Constituent Assembly and the new Federal Parliament. Also known as the Garowe II Principles, the agreement was signed by six high-ranking diplomats including president of the Transitional Federal Government (TFG) [CFR backgrounder] Sharif Sheikh Ahmed and Prime Minister Abdiweli Mohamed Gaas. The conference, which opened last Wednesday, was planned as an attempt to organize Somalia's most prominent diplomats in order to discuss the country's federal constitution, which has yet to be implemented. The conference came to a close on Friday.

The Garowe II Conference is one of the many steps the TFG has taken in order to create a functioning federal government in Somalia since the end of the Muhammad Siad Barre [Britannica profile] dictatorship in 1991. The plan for the new government developed at the conference is designed to replace the TFG [BBC report] and put in place a stable, more permanent government. There is skepticism among many observers as to whether this agreement will be implemented because Somalia has been involved in multiple agreements throughout the past few years. Details in the plan that need further development are expected to be worked out at the Somali conference in London, set to begin Thursday. Due to the lack of organized government in Somalia, maritime piracy has recently been a major issue. In November, France began the trial of six Somali pirates [JURIST report] on charges of hijacking, kidnapping and armed robbery in connection with a 2008 attack on a yacht. In October, two Somali pirates were sentenced to life in prison [JURIST report] by a judge in the US District Court for the Eastern District of Virginia.




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Latvia voters reject referendum to add Russian as official language
Jamie Reese on February 20, 2012 1:06 PM ET

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[JURIST] Latvian voters on Saturday rejected Russian [press release] as a second official state language in Latvia [official website]. Preliminary results from the national referendum show that 74.8 percent of voters rejected adding the Russian language with only 24.88 percent in favor of having two state languages. The percentage split of domestic votes also represents approximately the decision of those citizens abroad in foreign countries. The referendum vote had the highest national voter turnout since 1991 (when Latvia regained its independence) with 70.73 percentof eligible voters casting a ballot. There are approximately 300,000 non-citizens in Latvia [AP report]. This is because under current law anyone who moved to Latvia during the Soviet occupation after WWII must pass the Latvian language exam to gain citizenship. The hope of the referendum, even though failed, is that it will draw attention to the nation's minority who have not received the right to vote or work in government and to encourage dialogue between the government and national minorities.

In 2008, Latvian voters rejected a referendum [JURIST report] to amend the country's constitution that would have given voters the power to dissolve the country's parliament, even though some voters remained discontented with the government and say that the Latvian MPs do not act in accordance with voter's wishes. Latvia was formally part of the Soviet Union, but joined NATO in April 2004. A month later the country officially entered the EU. The Latvian parliament has since adopted [JURIST report] the new EU reform treaty [JURIST news archive], properly known as the Treaty of Lisbon [text, PDF; official website].




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Chief Guantanamo judge protects confidentiality of attorney-client mail
Andrea Bottorff on February 20, 2012 11:26 AM ET

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[JURIST] A chief US military tribunal judge has ruled that the content of attorney-client mail inspected at the Guantanamo Bay prison is confidential and may not be released. Judge James Pohl made the decision earlier this month in the case of suspected USS Cole [JURIST news archive] bomber Abd al-Rahim al-Nashiri [NYT profile; JURIST news archive], but the decision may also apply in other cases, including the cases of detainees accused of involvement in the 9/11 terror attacks [JURIST backgrounder]. Although the document has not been released by the Pentagon, al-Nashiri's lawyer described the decision to AFP, saying that mail inspectors are "greatly restricted" [AFP report] in sharing "anything they learned with anyone other than the judge." Pohl ruled on motions protesting a new policy [text, PDF] that 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 to ensure the correspondence does not contain physical or information contraband, such as maps of the detention facility. Guantanamo Navy Rear Admiral David Woods [official profile] defended the policy [JURIST report] last month at the opening day of al-Nashiri's pretrial hearings, testifying that it balances his responsibilities to facilitate attorney-client communication while also ensuring security, safety, guard protection and good order at the facility.

Lawyers for Guantanamo detainees have previously raised concerns with practices used at the prison. Earlier this month, James Connell, defense lawyer for suspected 9/11 conspirator Ali Abdul Aziz Ali, filed suit in the US District Court for the District of Columbia [official website] challenging the order [JURIST report] for military officials to read all legal correspondence between the lawyers of the suspected 9/11 conspirators and their clients. Last month, Chief Defense Counsel for Guantanamo Bay war crimes tribunals, Colonel JP Colwel, ordered [JURIST report] attorneys under his command not to comply with the policy. Woods issued the rules [JURIST report] in December. Lawyers for the prisoners responded with a written memo stating that they did not agree to the rule because it violates attorney-client privilege and would erode their clients' right to counsel that is afforded by the US Constitution [text].




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Israel Supreme Court to hear prisoner hunger strike case
Sarah Posner on February 20, 2012 10:21 AM ET

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[JURIST] The Israeli Supreme Court [official website] announced Monday that it will hear the hunger strike case of Palestinian prisoner Khader Adnan, despite a military judge rejecting his appeal in early February. Since his December arrest in the West Bank, Adnan has refused food [AP report]. This hunger strike has been carried on to protest Israel's policy of detaining Palestinian prisoners without bringing formal charges, presenting evidence, and without a trial. The spokeswoman for the Israeli Court released this information on the condition of remaining anonymous. Adnan's strike marks the longest lasting hunger strike by a Palestinian detainee in history. Doctors warn that Adnan may not survive long enough to stand trial.

Israel has recently faced criticism for the country's policy toward Palestinians. Earlier this month, Human Rights Watch (HRW) [advocacy website] urged Israel [JURIST report] to change its policies that forbid Palestinians from traveling through and living in Gaza and the West Bank. The Israeli Supreme Court upheld [JURIST report] a law that prevents Palestinians who marry Israelis from obtaining Israeli citizenship. With its ruling the court again rejected the petition filed by Adalah [advocacy website], a civil rights group in Israel, arguing that the law is unconstitutional.




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Myanmar monk faces new criminal charges after government amnesty
Andrea Bottorff on February 20, 2012 10:02 AM ET

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[JURIST] Myanmar police on Sunday charged a rebel Buddhist monk for occupying a government-closed monastery, only a month after he was given amnesty and released from prison [JURIST report]. Shin Gambira, who was among 130 political prisoners freed last month following a presidential pardon, is accused of living in and rebuilding the Meggin Monastery [advocacy report] in Rangoon. The monastery was destroyed and closed by government forces after the 2007 Saffron Revolution [Independent, backgrounder], a peaceful pro-democracy movement led by Gambira and other Buddhist monks. Since the pardoning of his 68-year sentence for leading the revolt, Gambira has criticized senior monks [Mizzima report] of a state-appointed Buddhist organization, the Sangha Nayaka Committee (SNC), for failing to fight for the release of other monks arrested following the 2007 demonstrations. The senior SNC monks have called for the government to take legal measures against Gambira for his political actions and alleged violations of the Buddhist code. Police arrested Gambira on February 10 and released him the same day after facing international criticism. A leader of the All Burma Monks' Alliance [website], Gambira has questioned the sincerity of recent government reforms in the country.

Myanmar's nominally civilian government has implemented numerous political reforms since winning the first elections held in 20 years in March 2011. Last month, in addition to releasing political prisoners, Myanmar President Thein Sein [BBC backgrounder] signed a clemency order that shortened sentences [JURIST report] for many prisoners on humanitarian grounds. In December, Sein gave his official approval to a bill allowing the country's citizens to conduct peaceful protests [JURIST report], if the protests are approved in advance. The Myanmar government also announced in December that the political party of opposition leader Aung San Suu Kyi [JURIST news archive] would be allowed to register for the next elections, a move that would allow Suu Kyi to run for parliament after being detained under house arrest [JURIST reports] for nearly eight years. UN Secretary-General Ban Ki-moon [official profile] has praised [JURIST report] the country's strive toward democracy.




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UK court rules for Sony in Pirate Bay copyright infringement case
Sarah Posner on February 20, 2012 9:44 AM ET

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[JURIST] A judge for the UK High Court ruled [judgment] Monday for the British unit of Sony Corporation [corporate website] and eight other record labels on their copyright infringement claim against the Swedish file-sharing website The Pirate Bay [website]. Judge Richard Arnold ruled that the operators of The Pirate Bay planned to infringe the copyright [Bloomberg report] of Sony and other recording labels and led the users of their website to do the same. Although The Pirate Bay was not a defendant in the suit, nor were the operators of the website, the plaintiff record labels can obtain a court order that would force Internet service providers to block access to the website. The Pirate Bay is a file-sharing website that allows users to download music and films. The website has been charged with both criminal and civil violations in other countries, including Sweden.

Earlier this month the Swedish Supreme Court announced that it will not hear an appeal [JURIST report] of the copyright convictions of Fredrik Neji, Peter Sunde and Carl Lundstroem for their involvement in running The Pirate Bay. After reviewing the case, the court found there were no special circumstances warranting review. The court could also have decided to hear the case if it determined a review by Sweden's highest court would be important for the country's law enforcement, but it declined to hear the appeal on those ground as well. The court's decision not to hear the appeal immediately prompted response from critics. The founder of the Pirate Party [party website in Swedish], a political party in Sweden, expressed concern [press release in Swedish] over the court's decision not to hear the case calling it a "fundamentally important" case that, if decided by the high court, would help to sort out future cases.




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US Supreme Court blocks enforcement of Montana campaign spending law
Jaimie Cremeans on February 19, 2012 3:23 PM ET

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[JURIST] The US Supreme Court [official website] on Friday blocked enforcement [order, PDF] of a Montana Supreme Court ruling, which upheld a state law [JURIST report] limiting the amount of money corporations can spend on campaigns, until it can consider an appeal from the corporations challenging the law. The Montana court ruling in Western Tradition Partnership, Inc. v. Montana [opinion, PDF] appears to conflict with the 2010 US Supreme Court ruling in Citizens United v. Federal Election Commission [opinion, PDF; JURIST report], which struck down a regulation that prohibited corporations and unions from using their general treasury funds for "electioneering communications" aimed at supporting or opposing a political candidate. The 1912 Corrupt Practices Act [text] upheld by the Montana Supreme Court prohibits the same activity. The plaintiffs will now have to apply for a writ of certiorari to have the case heard by the Court. If cert is granted, this case is likely to play out as an attempt to narrow the scope of, or overrule [SCOTUS blog] Citizens United.

American Trade Partnership, Montana Shooting Sports Association [advocacy websites] and Champion Painting, plaintiffs in this case, petitioned the US Supreme Court [JURIST report] to overturn the Montana court's decision last week. The Montana court ruled that the law did not violate the First Amendment and distinguished it from Citizens United because it still allowed for corporations to voice their political opinions in other ways, including lobbying and creating political action committees. The plaintiffs argue that upholding this law directly conflicts with the Citizens United ruling. Campaign finance [JURIST news archive] has been a hot button issue ever since that ruling, which led the US Court of Appeals for the Seventh Circuit strike down [JURIST report] a Wisconsin law that limited the amount any individual could donate to political action committees in a year. The Supreme Court also struck down [JURIST report] an Arizona law that provided subsidies for candidates who have had independent expenditures used against them. The US Court of Appeals for the Eighth Circuit, however, upheld [JURIST report] a Minnesota law in May that prohibited direct contributions to candidates and affiliates.




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US Congressmen petition FTC to investigate Google privacy practices
Jaimie Cremeans on February 19, 2012 1:22 PM ET

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[JURIST] US Representatives Edward Markey and Joe Barton, members of the Congressional Bi-Partisan Privacy Caucus [official website], and Cliff Stearns, of the Subcommittee on Oversight and Investigations [official website], sent a letter [text, PDF] to the Federal Trade Commission (FTC) [official website] on Friday asking it to look into possibly unlawful privacy practices by Google. The letter was a response to a Wall Street Journal article [text] published Friday, which charged that Google has been bypassing privacy settings of the Safari [official website] web browser so that it can track users without their consent. Safari, which is the default web-browser on all Apple products and most used browser on all mobile devices, is designed to block websites from being able to track users. Google got around this by using a special code that prevented Safari from recognizing it and allowed it to track users through almost any website. In their letter, the Congressmen asked the FTC to investigate whether these practices are in violation of a 2011 settlement agreement [JURIST report] it reached with the Commission after a breach of privacy rights during the launch of its social networking site Google Buzz. Under the settlement, Google is prohibited from misrepresenting its privacy policies to consumers and and must obtain consent from users before sharing their information with third parties.

The Congressmen also said that these practices are a "major concern" in light of the controversy surrounding announcement of its new privacy policy [text] set to take place on March 1. Earlier this month, the Electronic Privacy Information Center [advocacy website], a consumer privacy research center, filed suit [JURIST report] against Google, alleging that the new policy is in violation of its settlement agreement. Legality of the new policy has also been called into question by the EU, which sent a letter [JURIST report] to Google earlier this month asking it to delay implementation until it can fully investigate the policy. That letter was sent a day after Google responded to a letter from US Congressmen [JURIST reports] posing 11 questions about how consumer privacy rights will be affected by the changes.




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DOJ indicates denying same-sex couples military benefits is unconstitutional
Matthew Pomy on February 19, 2012 10:33 AM ET

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[JURIST] US Attorney General Eric Holder [DOJ profile] sent a letter [text] Friday to Speaker of the House John Boehner (R-OH) [official profile] stating that the Department of Justice (DOJ) [official website] has decided that denying same-sex couples military and veterans benefits violates the equal protection component of the Fifth Amendment [text]. In the letter, Holder explains that denying such benefits to same-sex couples legal married under state law on the basis of Title 38 [text], sections 101(3) and 101(31) is unconstitutional. Section 101(3) defines "surviving spouse" as a person of the opposite sex and section 101(31) defines the term "spouse" in general as a person of the opposite sex. As such, Holder has instructed the Department of Justice to cease legal defense of those provisions. He says in the letter:
The legislative record of these provisions contains no rationale for providing veterans' benefits to opposite sex spouses of veterans but not to legally married same-sex spouses of veterans. Neither the Department of Defense nor the Department of Veterans Affairs identified any justifications for that distinction that could warrant treating these provisions differently from Section 3 of the Defense of Marriage Act.
Holder's rationale comes out of a determination that "classifications based on sexual orientation should be subject to a heightened standard of scrutiny under equal protection principles." The letter informs Boehner of how the DOJ will procede in a pending case, McLaughlin v. Panetta, involving veterans benefits.

This is the latest in the Obama Administration's fight for marriage equality. The ruling is likely to affect a suit [text, PDF] brought earlier this month over the denial of disability benefits to a same-sex spouse of a veteran [JURIST report]. President Barack Obama reaffirmed his commitment [JURSIT report] to repealing the Defense of Marriage Act (DOMA) [text] last October. He has also made it clear that he supports the proposed Respect for Marriage Act [text], proposed last March [JURIST report]. In February 2011, the DOJ issued a ruling announcing that it would no longer defend the constitutionality of the DOMA [JURIST report].




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New Jersey governor vetoes same-sex marriage bill
Michael Haggerson on February 18, 2012 3:20 PM ET

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[JURIST] New Jersey Governor Chris Christie [official website] conditionally vetoed [statement, PDF] a bill legalizing same-sex marriage [Marriage Equality and Religious Exemption Act, PDF] and called for a voter referendum to decide the issue, rather than the state legislature [official website]. In his veto statement, Christie defended the legal importance of a voter referendum:
The framers of our State Constitution created the referendum process in Article IX as the sole mechanism by which the Constitution can be amended to consider precisely such important issues. I have repeatedly encouraged, and continue to ask that, the Legislature trust the people of New Jersey and seek their input by allowing our citizens to vote on the question of same-sex marriage. This path of amending the State Constitution, which embraces our most cherished democratic ideals and is enshrined in our guiding legal document, is the only way to amend our Constitution and the best way to resolve the issue of same-sex marriage in our State.
Christie's veto comes only one day after the New Jersey State Assembly approved the bill [JURIST report]. Christie stated that there was no constitutional right to same-sex marriage and that New Jersey gay couples have all the rights of married couples through civil unions.

The New Jersey State Assembly approved the bill 42-33 and the State Senate approved [JURIST report] the bill 24-16. Approval of the legislation marks a shift from the legislature's previous position concerning same-sex marriage. A similar bill was defeated [JURIST report] in the state Senate last year. In November, a lawsuit [JURIST report] was allowed to continue in New Jersey, which seeks declaratory and injunctive relief against the state's current civil union law as a contravention of both the Fourteenth Amendment [Cornell LII backgrounder] and the New Jersey State Constitution. On Monday, Washington became the eighth jurisdiction [JURIST report] in the US legalizing same-sex marriage.




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India court confirms charges against Mumbai terror suspects
Michael Haggerson on February 18, 2012 2:41 PM ET

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[JURIST] A New Delhi court on Saturday confirmed the Indian National Investigation Agency (NIA) [official website] charges against US citizen David Headley and eight others, including Canadian citizen Tahawwur Rana, for their roles in the 2008 Mumbai terror attack [BBC backgrounder; JURIST news archive]. The agency accused [press release, PDF] the terrorist organizations Lashkar-e-Toiba (LeT) and Harkat-ul-Jihad-al-Islami (HUJI) [SATP backgrounders] of using Headley, a member of LeT, for his "Caucasion looks" and American accent to gather tactical information on potential Indian terror attack sites. Rana allegedly provided financial support to Headley and used contacts which he had gained while doing business for an immigration consultancy group in Chicago. The charge sheet also accuses several Pakistani military officials of providing aid for the terror attack.

In March 2010 an Indian court heard final arguments [JURIST report] in the trial of Mohammed Ajmal Kasab [NDTV backgrounder], the lone surviving gunman, for his role in the terror attack. Kasab requested an international trial, arguing that he could not receive a fair trial in India, but was denied [JURIST report]. He also withdrew his confession, claiming that he was tortured and framed by the police [JURIST report] but the confession was nonetheless admitted against him. Earlier that month Headley pleaded guilty [JURIST report] in the US to 12 counts of federal terrorism for his role in the 2008 Mumbai attack and a plot to bomb the headquarters of Danish newspaper Jyllands-Posten [media website, in Danish], which published controversial cartoons [JURIST news archive] depicting the Prophet Muhammad. Headley initially pleaded not guilty [JURIST report] but likely changed his plea to avoid extradition to India, Pakistan or Denmark, or to avoid capital punishment.




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Maryland House of Delegates passes same-sex marriage bill
Jamie Davis on February 18, 2012 11:08 AM ET

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[JURIST] The Maryland House of Delegates [official website] on Friday passed a bill [HB 438 text] that would allow same-sex couples to legally marry within the state. The bill passed by a 72 to 67 vote and is set to move on to the Senate [WP report], where it must pass to receive the governor's approval. Those opposing same-sex marriage in Maryland are expected to put up strong resistance to the bill by holding petition drives that, if they receive enough support, could get the bill placed on the November ballot and give voters the final say. A similar bill was proposed last year in Maryland but failed to pass the House [JURIST report] after it was approved by the Senate. If approved by all parties, Maryland would become the eighth state, along with the District of Columbia, to allow same-sex marriage. Governor Martin O'Malley [official website], who praised the vote [statement text], has promised to sign the bill [WP report] once it passes the Senate.

Maryland is not the only state that has been trying to pass bill that would allows same-sex couples to marry. Earlier this week, Washington legalized same-sex marriage [JURIST report] after Governor Christine Gregoire on Monday signed legislation. New Jersey is also considering legalizing same-sex marriage soon, although it currently has a civil union system in place. In November, a lawsuit [JURIST report] was allowed to continue in New Jersey, which seeks declaratory and injunctive relief against the state civil union law as a contravention of both the Fourteenth Amendment and the New Jersey State Constitution. Same-sex marriage has been legalized in New York, Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and the District of Columbia [JURIST reports].




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UN General Assembly passes resolution condemning Syria violence
Jerry Votava on February 17, 2012 5:56 PM ET

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[JURIST] The UN General Assembly [official website] voted on Thursday to condemn Syria [JURIST news archive] through a non-binding resolution [press release]. The resolution supports a plan [text, PDF, in Arabic] advanced by the Arab League [official website] that aims to bring the situation in Syria to a close as quickly as possible by encouraging President Bashar al-Assad [BBC profile; JURIST news archive] to step down. There were 12 votes against the resolution [UN News Centre report] including Russia, China, Iran and Bolivia.
By other terms of the text adopted today, the Assembly expressed its full support for the Arab League's decision to facilitate a Syrian-led political transition to a democratic, pluralistic political system, including through a "serious political dialogue between the [Syrian Government] and the whole spectrum of the Syrian opposition." Reaffirming its strong commitment to Syria's sovereignty, independence, unity and territorial integrity, it further reaffirmed that all Member States "should refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State."
Amendments by Russia that "proposed to place reasonable demands on opposition forces to disassociate themselves from armed groups and to demand that those groups themselves stop their attacks" were rejected. In response to the resolution, the representative for Syria called the resolution and the Arab League's actions a "Trojan horse," and argued that the Arab League is now controlled primarily by Western oil companies. He also stated that his country is responding to calls for reform, specifically noting a recently announced referendum for a new constitution [JURIST report].

The growing unrest in Syria has drawn copious international attention recently. Earlier this week, both UN High Commissioner for Human Rights Navi Pillay and Secretary General Ban Ki-Moon [JURIST reports], called for an end to the violence in Syria, with Pillay asking the UN Security Council to refer the situation in Syria to the International Criminal Court (ICC). Pillay urged an investigation of Syrian government and military officials for possible crimes against humanity. The UN Children's Fund (UNICEF) claimed earlier in February that the past 11 months of violence in Syria have led to the deaths of hundreds of children [JURIST report]. In January, Ban demanded [JURIST report] that al-Assad end violence against Syrian civilians. The UN Office of the High Commissioner for Human Rights reports that more than 5,000 people have died since anti-government protests began last March.




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Canada high court dismisses appeal on student exemption from religious course
Jaimie Cremeans on February 17, 2012 2:11 PM ET

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[JURIST] The Canada Supreme Court [official website] on Friday dismissed an appeal [opinion] from Catholic parents who hoped to exempt their children from attending religious courses as part of a mandatory Ethics and Religious Culture Program (ERCP) [official profile] in Quebec. The parents argued that the courses would teach their children things contrary to their own religious values, and had previously challenged the requirement through their school board, which denied their requests. They asked the court to declare that the program was an infringement on their children's constitutional rights to religion and to review the school board's decision to not exempt them from the courses. In the court's dismissal, Justice Marie Deschamps stated:
Although the sincerity of a person's belief that a religious practice must be observed is relevant to whether the person's right to freedom of religion is at issue, an infringement of this right cannot be established without objective proof of an interference with the observance of that practice. In this case, given the trial judge's findings of fact and the evidence in the record concerning the neutrality of the ERC Program, I conclude that the appellants have failed to prove such an interference.
Deschamps also wrote that "early exposure of children to realities that differ from those in their immediate family environment is a fact of life in society," and that exposure "does not in itself constitute an infringement."

The Ethics and Religious Culture Program was created in 2008 as a replacement for the Moral Education, Catholic Religious and Moral Instruction, and Protestant Moral Education and Religious Education courses that existed at the time. Denis Watters, head of the ERCP at the Quebec Ministry of Education, Leisure and Sport [official website], said the ERCP is designed "to equip [students] with knowledge that will help them decode the meanings of the various religious expressions around them," not to push any of the religions on students. There are often instances of tension between religious freedom and educational requirements in other countries as well. In 2009, Germany's high court rejected a religious challenge against required sexual education classes. In 2008, a US federal court ruled that Pennsylvania educational requirements did not violate [JURIST reports] religious rights of children who are home schooled.




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China must release Tibet prisoners: HRW
Matthew Pomy on February 17, 2012 1:49 PM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] demanded [press release] Thursday that China release Tibetan [BBC backgrounder] prisoners that were captured while travelling and are now being forced into political re-education camps. The exact number of those detained is not known, but it is thought to be several hundred. Those detained had gone to India to hear the teachings of the Dalai Lama [official website] with valid travel documents, only to be captured upon their return. HRW called the arrest of properly documented travelers "unprecedented" and noted that this is the first known widespread detention of laypeople since 1970. Sophie Richardson [HRW profile], China director at HRW, said in a statement:
Arbitrarily detaining people and forcing them to undergo political indoctrination is an abuse of Chinese and international laws. [...] Authorities in the region should release these individuals, as their detention only escalates the tension in Tibetan regions which already have increased limits on travel and communication as well as troop and security presence.
The report notes further that the ethnic Chinese who attended the Dalai Lama's teachings were not detained, which suggests the detentions were motivated purely by ethnicity.

China has long imposed strict restrictions on Tibet. In November 2011, the UN formally expressed concern over China's treatment of Tibet. That June, concern over an influc of missing persons prompted a UN rights body to demand a report on disappearances. The same month, the US requested China release peaceful protesters arrested in Tiananmen Square. In July of 2010, HRW published a report alleging China violated international law [JURIST reports] in its treatment of Tibetan protesters. Secrecy in China's judicial system [JURIST comment] often raises human rights concerns [JURIST news archive] over prisoners being held there.




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UN SG speaks on nuclear disarmament, calls for openness from Iran
Matthew Pomy on February 17, 2012 1:11 PM ET

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[JURIST] UN Secretary-General Ban Ki-Moon [official profile] called for Iran to prove its commitment to not seeking nuclear weapons after giving remarks [text] at an event marking the 15th anniversary of the Comprehensive Nuclear-Test-Ban Treaty (CTBT) [text, PDF] on Friday. The CTBT bans the testing of nuclear weapons internationally, but it will not come into force until it is ratified by the US, Iran and six other countries. Iran has claimed that it is not developing nuclear weapons and is researching nuclear power as another energy option, whereas the US has a well-developed nuclear weapon program [Brookings Institute report]. Ban called on all nations to ratify the treaty and end research on nuclear weaposn:
So today I issue a challenge to all leaders of all countries that have not yet endorsed the CTBT: Visit the site of a nuclear test. Speak to the population exposed to the fallout. Then take action to prevent this from ever happening again. Today, on this fifteenth anniversary, we remember the victims. At the same time, we remember the hope in which the CTBT was conceived. The hope for a future where international peace and security do not depend on the mad doctrine of mutually assured destruction or hang on the thin thread of good luck. Nuclear disarmament and non-proliferation are not utopian ideals. They are critical to global peace and security. We have a legal and moral obligation to rid our world of nuclear tests and nuclear weapons. When we put an end to nuclear tests, we get closer to eliminating all nuclear weapons. A world free of nuclear weapons will be safer and more prosperous. Governments now spend vast sums of money to build and test arsenals of death. The world is over-armed and development is under-funded. It is time to reverse that equation.
After the speech, Ban spoke to reporters [AP report] about an International Atomic Energy Agency (IAEA) [official website] report [text, PDF] published in November that claimed there were activities in Iran that were "specific to nuclear weapons." Ban urged Iran to cooperate with international diplomacy efforts on its nuclear program.

There continues to be international debate over Iran's nuclear program and whether or not the nation is seeking a nuclear weapon. Earlier this month, the US began imposing strict sanctions on Iran because of its nuclear program. Iran claims that its nuclear rights are being taken away [JURIST reports], but there are those who argue the IAEA has a legal right to regulate nuclear weapons [JURIST op-ed]. There has also been a continued international response from the UN with new sanctions being imposed in June 2010 to increase the restrictions placed on Iran from the first set of sanctions in 2006 [JURIST reports].




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NJ Assembly votes to approve same-sex marriage
Sung Un Kim on February 17, 2012 11:45 AM ET

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[JURIST] The New Jersey State Assembly voted 42-33 on Thursday to legalize same-sex marriage [JURIST backgrounder]. Assembly Speaker Sheila Oliver [official website], who sponsored the bill, indicated [AP report] that she was proud the legislature was able to use the legislative process to represent all of the citizens of the state. The approved legislation [Marriage Equality and Religious Exemption Act, PDF] was forwarded to Governor Chris Christie [official website] on Friday morning. Christie has stated that he plans to veto the bill [WSJ report], believing the issue should be placed before the voters of the state in a referendum. Both chambers are currently lacking the two-thirds needed to overrule a veto. In order to override such a veto, 27 votes will be needed in the Senate and 54 votes in the Assembly.

Thursday's outcome was expected after the New Jersey Senate [official website] approved the bill [JURIST report] on Monday, in a vote of 24-16. Approval of the legislation marks a shift from the legislature's previous position concerning same-sex marriage. A similar bill was defeated [JURIST report] in the state Senate last year. In November, a lawsuit [JURIST report] was allowed to continue in New Jersey, which seeks declaratory and injunctive relief against the state's current civil union law as a contravention of both the Fourteenth Amendment [Cornell LII backgrounder] and the New Jersey State Constitution. On Monday, Washington became the eighth jurisdiction [JURIST report] in the US legalizing same-sex marriage.




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India Supreme Court hears arguments on legality of homosexuality
Michael Haggerson on February 17, 2012 11:35 AM ET

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[JURIST] The Indian Supreme Court [official website] is set to hear additional arguments on Friday in a case challenging a 2009 Delhi High Court ruling decriminalizing homosexual intercourse. Anti-gay activists argue that homosexual sex is banned under Section 377 of the Indian Penal Code [text] which criminalizes unnatural "carnal intercourse." In response, the court questioned [The Indian Express report] whether the law was ever intended to criminalize homosexuality because it does not specifically mention homosexuality. The court also pointed out that while homosexuality may be abnormal, that does not necessarily mean that it is unnatural. The court went on to state that the law must be viewed in the context of changing societal values [New Delhi Television report].

Homosexuality is an international issue that many countries struggle to deal with. Earlier this week, Amnesty International [advocacy website] condemned [JURIST report] the government of Uganda for shutting down a LGBT workshop and attempting to arrest the leader. Earlier this month, Uganda reintroduced legislation [JURIST report] that would criminalize certain homosexual activities, including dictating a life sentence for individuals who enter into a same-sex marriage. In June, UN Secretary General Ban Ki Moon [official profile] demanded [JURIST report] that African countries honor the Universal Declaration of Human Rights [text] by ending discrimination based on sexual orientation and gender identity. According to the International Lesbian, Gay, Bisexual, Trans and Intersex Association [advocacy website] State-Sponsored Homophobia report [text, PDF], 76 countries still criminalize same-sex relationships, and five enforce the death penalty against homosexuals.




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Ecuador journalist seeks asylum from libel suit
Michael Haggerson on February 17, 2012 10:49 AM ET

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[JURIST] Carlos Perez, one of four El Universo [official website, in Spanish] managers convicted of libel [JURIST report] against Ecuadorian President Rafael Correa [official website, in Spanish; BBC profile], was granted asylum by Panama on Thursday. El Universo is the second largest newspaper in Ecuador. Two of the four men, Cesar and Nicolas Perez, have already fled to Miami. The announcement that Carlos Perez had been granted asylum came shortly after [AFP report] Ecuador's highest court, the National Court of Justice, upheld the conviction against the four El Universo managers [press release, in Spanish]. The men were sentenced to three years in prison each and fined USD $40 million in total. Correa indicated that he was surprised that Panama granted the men asylum because, in his view, they were common criminals and not persecuted political activists. He also stated on Thursday that he was considering pardoning [LA Times report] the men. The El Universo officials stated that they will bring an appeal to the Inter-American Commission on Human Rights [official website] to fight the verdict.

Correa remains resolute that the media in Ecuador is corrupt and must be harnessed. In a statement [El Ciudadano, in Spanish], he called the suit one of his greatest legacies because now the Ecuadoran "corrupt press" know they cannot "damage the honor of a person." He also pointed to El Universo's willingness to apologize as a sign of their culpability: "[T]hey knew they had committed a crime, but pride prevented them, as required by the Constitution, to correct [their error]." El Universo, in fact, offered several times to retract the editorial, allow Correa to write his own correction and settle out-of-court, but Correa's lawyer refused their settlement offers. El Universo remains defiant. The newspaper's front page on the day of the verdict displayed a headline of "Condemned" followed by an Ayn Rand quotation: "When you see that men get richer by graft and pull than by work, and your laws don’t protect you against them, but protect them against you—when you see corruption being rewarded and honesty becoming a self-sacrifice—you may know that your society is doomed." El Universo's report [text, in Spanish] states they believe Ecuador's libel laws are in violation of the Inter-American Commission on Human Rights, for using criminal law to punish expressions against public officials. Correa has another suit pending against journalists Juan Carlos Calderon and Christian Zurita for their book Big Brother [Amazon profile], which claimed that Correa's brother had awarded millions of dollars of government contracts to businesses for his own profit. Human Rights Watch (HRW) [advocacy website] criticized Correa rallying against journalists earlier this year and pleaded with him to not prosecute journalists [report text].




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Federal court sentences attempted plane bomber to life imprisonment
Sung Un Kim on February 17, 2012 10:36 AM ET

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[JURIST] The US District Court for the Eastern District of Michigan [official website] on Thursday sentenced [DOJ news release] Umar Farouk Abdulmutallab [BBC profile; JURIST news archive] to life imprisonment for his attempted bombing on an American aircraft. The 25-year old Nigerian national, who has been linked to al Qaeda, unsuccessfully attempted to detonate an underwear bomb while on Northwest Airlines flight 253 from Amsterdam to Detroit on Christmas Day 2009. The bomb created a fire, but failed to explode, burning Abdulmutallab without causing fatalities to other passengers. During Abdulmutallab's sentence the presiding judge, Nancy G. Edmunds, stated that Abdulmutallab "has never expressed doubt or regret or remorse about his mission." He was sentenced on all 8 counts of indictment [text, PDF; JURIST report] including conspiracy to commit terrorism, attempted murder and attempted use of a weapon of mass destruction. Following Thursday's decision, the family of Abdulmutallab urged the court [statement, PDF] to reconsider the life sentence.

Abdulmutallab pleaded guilty [JURIST report] in October against the advice of his attorney, after initially entering not-guilty pleas [JURIST report] on all charges in 2010. In September of 2010, Abdulmutallab fired his lawyer [JURIST report] and decided to represent himself. The case was initiated by US authorities [JURIST report] on December 26, 2009. Following Abdulmutallab's attempted bombing, numerous additional safety measures were put in place in regards to US air travel. US President Barack Obama announced [JURIST report] in December of 2009 that officials would increase screening requirements as well as the number of air marshals aboard flights.




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Prosecutors ask Roman court to try Italy ex-PM Berlusconi for tax evasion
Brandon Gatto on February 16, 2012 2:23 PM ET

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[JURIST] La Procura di Roma, the public prosecutors of Rome, has asked the Tribunale Ordinario di Roma [official website, in Italian] to put former Italian prime minister Silvio Berlusconi [BBC profile; JURIST news archive] and his son on trial for tax evasion, judicial sources said on Thursday. La Procura is calling for a tribunal of Berlusconi and 11 others [La Repubblico report, in Italian] as part of a broader inquiry into Mediaset [corporate website, in Italian], the media group owned by Italy's former figurehead. Specifically, the prosecutors say that Mediaset violated Italian tax laws when it bought the rights of Hollywood films and TV shows, and that Berlusconi and his son, Pier Silvio, were part of a scheme to defraud the tax authorities of 10 million euros, or $13.07 million, by inflating invoices between 2004 and 2005. At the moment, the controversial former prime minister is facing three other trials, including a bribery case and two corruption cases. Berlusconi, however, attributes all of the charges to political attacks from his adversaries. In an open letter [text, in Italian] to the Milan-based newspaper Il Giornale [media website, in Italian], Berlusconi wrote in Italian:
I have a conscience; to have served my country in these years with all of my strength, and I am rewarded with a persistence on the part of some magistrates in Milan that have no historical equal. They want to tear down my image as a man, a businessman, and a politician. What saddens me most is to see the extent to which justice can be bent to political and ideological prejudices.
Amid the controversy, prosecutors have not responded to the ex-prime minister's decree, and the Roman court has yet to rule if the case will move forward.

Berlusconi, who resigned as Italian prime minister in November 2011, has been a defendant in nearly fifty cases. Most recently, he is facing charges of publicly releasing private wiretaps, embezzlement, and paying for sex with an underage prostitute [JURIST reports]. The former Italian leader was hailed to a Milan court in April 2011 to combat the same tax fraud charges at issue now, but then, as acting prime minister, Berlosconi dismissed the charges as a "waste of time" and left the trial [AP report]. In January 2011, the Italian Constitutional Court [official website, in Italian] held hearings and subsequently struck down [JURIST reports] portions of an immunity law [materials, in Italian] supported by Berlusconi that would have granted the premier temporary amnesty from any charges while in office.




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HRW calls for reduction of Latin America prison population
Jamie Reese on February 16, 2012 1:44 PM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] on Thursday called for the reduction of overcrowding [press release] to improve poor prison conditions in Latin America following a prison fire in Honduras. The fire occurred this past Tuesday and killed more than 300 inmates while injuring dozens more. According to HRW, Honduras prisoners suffer overcrowding which leads to poor prison conditions including inadequate nutrition and sanitation, all leading to the tragic result earlier this week. Americas Director at HRW, Jose Miguel Vivanco [official profile], stated, "The tragic deaths of hundreds of inmates, one of the worst incidents of its kind in the region, are ultimately the result of overcrowding and poor prison conditions, two longstanding problems in Honduras." According to local press, Honduras has 24 prisons with a total capacity of 8,000. These prisons currently hold 13,000 prisoners, well over capacity.

The US also has prison overcrowding concerns, particularly in California. 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 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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Oklahoma senate passes bill granting personhood to the unborn
Rebecca DiLeonardo on February 16, 2012 1:25 PM ET

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[JURIST] The Oklahoma Senate [official website] on Wednesday voted to pass a bill [SB 1433 text; materials] that defines life as beginning at the moment of conception. The bill passed 34-8 and will advance to the State House for consideration. If passed, the bill would effectively ban abortions [JURIST news archive] in the state. Oklahoma Senator Brian Bingman (R) [official profile], a co-author of the Bill, said [press release] its passage made a "loud clear statement" about Oklahoma's position in the abortion debate. The bill is designed to expand all personhood rights to the unborn:
The life of each human being begins at conception;...The laws of this state shall be interpreted and construed to acknowledge on behalf of the unborn child at every stage of development all the rights, privileges, and immunities available to other persons, citizens, and residents of this state.
Oklahoma Governor Mary Fallin [official profile], who signed legislation [JURIST report] last year banning abortions after 20 weeks, did not comment [Reuters report] on the new legislation.

Many states have recently been considering laws either limiting or banning abortions. Earlier this week, the Virginia House of Delegates [official website] passed a similar bill that would also define life as beginning at conception [JURIST report]. Earlier this month, the Virginia Senate approved legislation requiring a woman to have an ultrasound before an abortion [JURIST report]. Last November, Mississippi voters rejected [JURIST report] a ballot measure [Initiative 26 materials] that would have amended the state constitution to define the word "person" or "persons" to include "every human being from the moment of fertilization, cloning, or the functional equivalent thereof." The initiative, which would have given fetuses rights from the moment of conception, was defeated by more than 55 percent of the state's voters. In October 2011, an Oklahoma state court judge issued a temporary injunction [JURIST report] against a new Oklahoma law that restricts how doctors may use abortion-inducing drugs to treat patients.




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Judge to set verdict date Egypt ex-president Mubarak trial next week
Katherine Getty on February 16, 2012 1:12 PM ET

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[JURIST] Judge Ahmed Refaat will set the date to announce his verdict in a court session next Wednesday in the trial of former Egyptian President Hosni Mubarak [Al Jazeera profile, JURIST news archive], the judge told the court Thursday. Mubarak's lawyers will have their opportunity to make their final remarks [Reuters report] at the Wednesday court session, in which they will respond to the prosecution's arguments. 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 office [JURIST report]. If convicted, Mubarak could face the death penalty [JURIST report]. Many fear if Mubarak is given a light sentence it could spark another round of violence.

Mubarak's trial started [JURIST report] in August 2011 and has been making slow progress. The trial resumed in December in the Egyptian court after a two-month adjournment [JURIST reports] allowing 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 they 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 2011, but left early and refused to be cross-examined by counsel of the victims. In December 2011 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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Colorado senate to consider civil union bill
Rebecca DiLeonardo on February 16, 2012 12:29 PM ET

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[JURIST] The Colorado Senate Judiciary Committee [official website] on Wednesday voted 5-2 [materials] to approve a proposed civil union bill [SB12-002 text, PDF], referring it to the Colorado Senate [official website] for a full vote. The bill gives same-sex couples the "all legal benefits, protections, and responsibilities of spouses" joined in marriage. On Wednesday, the Judiciary Committee heard testimony [JURIST report] from advocates and opponents of the bill. The bill is expected to pass in the state senate [AP report], before proceeding to the House, where House Speaker Frank McNulty (R) [official website] has voiced opposition. A similar civil union bill passed in the Colorado Senate last year [JURIST report], but was ultimately defeated in the House [Reuters report]. The Colorado constitution defines marriage as a union between one man and one woman.

Issues surrounding same-sex marriage [JURIST backgrounder] continue to occupy discussions among lawmakers and judges. On Tuesday the New Jersey Senate voted to approve a bill [JURIST report] that, if passed, would legalize same-sex marriage in the state. Washington Governor Christine Gregoire signed legislation [JURIST report] Monday legalizing same-sex marriage, making Washington the eighth jurisdiction in the US to offer marriage to same-sex couples. Earlier this month, the US Court of Appeals for the Ninth Circuit ruled that Proposition 8, California's ban on same-sex marriage, is unconstitutional [JURIST report]. In January, an Iowa District Court ordered that the Iowa Department of Public Health include both names [JURIST report] of married same-sex parents on children's birth certificates.




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UN Secretary General urges Syria to stop alleged crimes against humanity
Katherine Getty on February 16, 2012 12:26 PM ET

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[JURIST] United Nations (UN) [official website] Secretary General Ban Ki-Moon [official profile] Thursday called on Syria to end to violence against civilians and possible crimes against humanity [press release]. During a speech in Vienna, Austria, the Secretary General said he had urged Syrian President Bashar al-Assad [BBC profile, JURIST news archive] to make necessary changes before the unrest spread, but Assad instead took military action against the people of Syria. Ban said that estimates show over 5,000 people have been killed since violence started 11 months ago:
Lack of access has prevented the United Nations, the international community and humanitarian workers from knowing the full toll, yet credible reports indicate at least more than 5,400 people were killed as of last year. We have not been able to have credible information [on] how many more people have been killed between 1 January and today. Every day those numbers rise. We see neighborhoods shelled by tanks. Hospitals used as torture centers. Children as young as ten years old jailed and abused. We see almost certain crimes against humanity. The UN places the death toll around 5,000 people since the uprising started.
On Wednesday, Al-Assad ordered a referendum on a new constitution [JURIST report], which could open the country up to a multiparty political system. But some critics have argued that the referendum, scheduled for February 26, is insufficient.

The growing unrest in Syria has drawn abundant international attention recently. Earlier this week, UN High Commissioner for Human Rights Navi Pillay [official profile, JURIST news archive], in a speech to the UN General Assembly [JURIST report], called for the UN Security Council to refer the situation in Syria to the International Criminal Court. Pillay urged an investigation of Syrian government and military officials for possible crimes against humanity. The UN Children's Fund (UNICEF) [official website] claimed in early February that the past 11 months of violence in Syria have led to the deaths of hundreds of children [JURIST report]. In January, Ban demanded [JURIST reports] that al-Assad end violence against Syrian civilians.




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Philippines president calls for public support in chief justice impeachment trial
Jamie Reese on February 16, 2012 12:23 PM ET

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[JURIST] Philippine President Benigno Aquino [BBC profile] called for public support Thursday to encourage impeachment proceedings against Philippine Chief Justice Renato Corona [official profile]. Aquino warned that the fight against corruption depended on the result [AFP report] of the impeachment. Aquino invoked the "people power" revolution, which gives Filipinos the power to ensure Corona is removed from office. Aquino recalled "civil disobedience campaigns" used in the past by civilians to oust a previous dictator peacefully. He claims that if the Senate acquits Corona it will destroy his efforts against corruption in the Philippines. Corona is charged [text] with 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.

Corona's impeachment trial began [JURIST report] in January before the Philippine Senate [official website]. If found guilty, Corona will likely be forced out of office. Aquino has targeted former president Arroyo in his anti-corruption efforts. 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 in 2010 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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ICTY delays Mladic trial
Jennie Ryan on February 16, 2012 10:38 AM ET

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[JURIST] The International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] on Thursday delayed [order, PDF] the trial of former Serbian general and alleged war criminal Ratko Mladic [ICTY backgrounder, PDF; JURIST news archive], setting a new start date of May 14. The previous start date for the trial [JURIST report] was March 27. The delay was ordered after Mladic's defense lawyers argued they needed more time [BBC report] to sift through thousands of pages of evidence. The prosecution alone intends to present approximately 27,906 exhibits throughout the course of its case. Mladic faces charges of genocide and crimes against humanity, including murder, political persecution, forcible transfer and deportations, cruel treatment and the taking of peacekeepers as hostages committed by Bosnian Serb forces under his command during the Bosnian civil war, which saw over 100,000 casualties and hundreds of thousands more displaced. The order also set a pre-trial conference [press release] for April 17. The next status conference in the case will be held on March 29.

In December of last year, a three-judge panel for the ICTY accepted a request brought by prosecutors to reduce the number of crimes [JURIST reports] they intend to prove against Mladic from 196 to 106. The request came days after the ICTY ordered a medical examination [JURIST report] of Mladic's physical condition in response to his absence from court the week prior due to illness. In October, the ICTY prosecutor refused to seek further appeal [JURIST report] of the tribunal's refusal to split Mladic's trial into separate actions: one for his conduct during the Srebrenica massacre [JURIST news archive], where approximately 8,000 people were killed, and one for all of his other charges during the Bosnian civil war [JURIST news archive]. Mladic made his first appearance [JURIST report] at the ICTY in June, contesting the charges while simultaneously asking for more time to review them, which he was granted. Before that, he had lost his final appeal in Serbia to avoid extradition, and was transported to The Hague [JURIST reports]. Serbian authorities captured Mladic [JURIST report] in May, ending a 16-year manhunt for the former general colonel and commander of the army of the Serbian Republic of Bosnia and Herzegovina.




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Libya leaders abusing, torturing Gaddafi supporters: AI
Jennie Ryan on February 16, 2012 10:18 AM ET

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[JURIST] Amnesty International (AI) [advocacy website] on Thursday released a report [text] accusing the ruling National Transitional Council (NTC) [official website] in Libya of allowing the abuse and torture of supporters of former leader Muammar Gaddafi [BBC obituary; JURIST news archive] by unofficial militias. In the report, AI alleges that supporters of Gaddafi are being unlawfully detained, tortured and even killed by militias that the NTC has failed to control. The report was compiled by AI representatives who traveled to Libya in January and February and visited 11 facilities used to detain suspected Gaddafi loyalists. AI reported [press release] that 12 detainees have been killed while in the custody of these militias and described some of the abuse:
Many detainees told Amnesty International that they had been beaten, including with sticks, whips and rifle butts. Several said they suffered other forms of torture, including electric shocks, burns, and threats of rape or death. Forensic examinations of some of those who died in detention provide further evidence that such methods are still being used.
The report recommends that the NTC put an immediate end to unlawful detentions and ensure that any arrests are carried out by lawful police forces, ensure humane treatment of detainees and investigate the reported deaths of prisoners.

Allegations of war crimes and human rights violations have been widespread during the Libya conflict [JURIST backgrounder]. In October of last year, AI alleged that Libyan forces arrested nearly 2,500 people who face ongoing torture and detainment [JURIST report] without formal charges. In September, the NTC vowed to investigate allegations of human rights abuses 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. That same 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.




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Turkish retired general to be tried in lower court
Jerry Votava on February 15, 2012 7:51 PM ET

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[JURIST] An indictment against General Ilker Basbug [official website, in Turkish] was accepted by the Istanbul 13th High Criminal Court on Wednesday, after Basbug's request to have his case heard by the Supreme State Council, a faction of Turkey's Constitutional Court [official website, in Turkish], was denied. The request was denied because the charges faced by the general are related to terrorism, and not the result of his official professional conduct. Basbug, formerly the leader of all of Turkey's armed forces, was arrested [JURIST report] in January 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 in connection with Ergenekon. Basbug has claimed that he is innocent, and lower-ranking military officials who have been indicted have stated 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. Basbug plans to object to his venue when his trial begins.

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 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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Uganda must end anti-gay human rights violations: AI
Katherine Getty on February 15, 2012 6:33 PM ET

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[JURIST] Amnesty International (AI) [advocacy website] released a statement [text] Tuesday condemning recent anti-gay actions by the government of Uganda [BBC backgrounder]. The statement came in response to a number of adverse actions against lesbian, gay, bisexual, and transgender (LGBT) activists in the nation. Minister for Ethics and Integrity Simon Lokodo shut down an LGBT workshop on Tuesday by advocacy group Freedom and Roam, declaring it illegal and trying to arrest the leader. That incident occured shortly after the Parliament of Uganda [official website] brought back a controversial anti-gay bill [JURIST report] that would raise the penalty for homosexual acts from 14 years to life in prison. AI contends that Uganda's increasing persecution of the LGBT community is in violation of international law.
The Government of Uganda must protect all people against threats, violence and harassment irrespective of their real or perceived sexual orientation or gender identity. [...] The Government's claimed opposition to the Bill needs to be supported through their actions. The Ugandan government must allow legitimate, peaceful gatherings of human rights defenders, including those working on LGBT rights.
Parliament agreed to drop [JURIST report] the death penalty clause in the bill earlier this month. Since the bill was reintroduced there have been allegations of escalating violence against perceived homosexuals.

Uganda faces an ongoing struggle with anti-gay sentiment in the country. In November the Ugandan High Court sentenced a man to 30 years in prison for beating to death prominent gay rights activist David Kato. In January 2011 the Ugandan High Court issued a permanent injunction and awarded damages to three plaintiffs who were among 100 people alleged to be homosexuals by the Ugandan tabloid newspaper, The Rolling Stone. In January 2010 UN High Commissioner for Human Rights Navi Pillay criticized the original anti-gay legislation, saying that it could harm Uganda's reputation internationally. In February 2010, US President Barack Obama and Secretary of State Hillary Clinton publicly denounced the proposed legislation [JURIST reports].




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Colorado district court upholds tribal sovereign immunity
Rebecca DiLeonardo on February 15, 2012 1:36 PM ET

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[JURIST] The US District Court for District of Colorado [official website] ruled [decision, PDF] on Monday that tribal sovereign immunity [NCAI backgrounder] applies to online money-lending sites. The court ruled that the defendants, members of several Native American tribes, did not waive all sovereign immunity claims when their online business consented to private suit and could not be held in contempt of court. Following the ruling, the Native American Lending Alliance (NALA) [official website] said [press release] the decision was a "big win" for tribal sovereign immunity:
The decision included particularly strong language supporting absolute sovereign immunity for tribes to engage in commerce using the Internet. [T]ribal immunity applies to a tribe's governmental and commercial activities alike ... [n]ot only has every federal court of appeals addressing this issue so concluded, but the United States itself has also conceded that a tribe does not lose its immunity simply by engaging in a business through a corporate entity.
The defendants faced criminal charges for violating the Colorado Deferred Deposit Loan Act, which required money-lenders in the state to obtain licenses. The Colorado Attorney General has not indicated [AP report] whether there will be an appeal.

Tribal sovereign immunity has faced legal challenges in recent years. In 2011, the US Supreme Court [official website] remanded the case [JURIST report] of Madison County v. Oneida Indian Nation [docket; cert. petition, PDF] to the US Court of Appeals for the Second Circuit [official website], ordering the lower court to reconsider its ruling. The Second Circuit had found that tribal sovereign immunity prevented county authorities from foreclosing on property belonging to the Oneida Indian Nation [official website]. In 2008, the US Court of Appeals for the Ninth Circuit [official website] ruled that tribal sovereign immunity applies [JURIST report] to lawsuits brought in federal court dealing with the profit-making businesses of Indian tribes. In 2007, the US Court of Appeals for the District of Columbia [official website] upheld [decision, PDF] a 2004 ruling that the National Labor Relations Board (NLRB) [official website] had jurisdiction over tribunal businesses including casinos, placing the tribes under the National Labor Relations Act [text].




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Iraqi-born cleric pleads not guilty in Norway to encouraging suicide bombings
Max Slater on February 15, 2012 1:02 PM ET

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[JURIST] Mullah Krekar, the founder of the Iraqi Kurdish Islamist group Ansar Al Islam [CFR backgrounder], pleaded not guilty before a Norwegian district court on Wednesday to charges of condoning suicide bombings and making death threats against politicians. The prosecutor in the case, Marit Bakkevig, declared that Krekar, who has been living in Norway since 1991, broke Norwegian anti-terror laws by making threats that were intended to incite fear in society [AFP report]. In 2009, Krekar had proclaimed that if he were deported to Iraq and killed, Norwegian officials would pay with their lives. Another charge against Krekar stemmed from his appearance on the NBC News Program "The Wanted" [youtube footage] in 2009, in which Krekar encouraged suicide bombings against Americans in Iraq and said America deserved the September 11, 2001 terror attacks. Krekar's lawyer proclaimed that his client stood by what he said, but that this is a test case [AP report] for drawing the line between Norway's terror laws and freedom of speech. Krekar's trial is expected to last three weeks. If found guilty of violating Norway's anti-terror laws, Krekar could face fifteen years in prison.

Norway's terror laws have sparked controversy recently. Last week, JURIST guest columnist Per Lægreid of the University of Bergen argued [JURIST op-ed] that Norway's terror laws should not be extended to individuals planning terrorist attacks, and when choosing between preventing terror and protecting civil liberties, the latter should prevail. In January, a Norwegian court issued the first conviction under Norway's anti-terror law [JURIST report], convicting two men who were accused of planning an attack on a Danish newspaper that published cartoons of the Prophet Muhammad.




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Guantanamo inmate's request to question Yemen president denied
Max Slater on February 15, 2012 12:59 PM ET

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[JURIST] A military judge on Tuesday denied the request of suspected USS Cole bomber and Guantanamo inmate Abd al-Rahim al-Nashiri [NYT profile; JURIST news archive] to question Yemeni President Ali Abdullah Saleh [BBC profile] as a witness in his case. The judge, US Army Colonel James Pohl, did not give a rationale for his ruling [AP report], saying only that he would explain his decision later. In January, the US State Department (DOS) [official website] declared [press release] that Saleh has diplomatic immunity despite his seeking medical treatment in the US. Nashiri's lawyer, Lt. Cmdr. Stephen Reyes, said that diplomatic immunity should not apply to Saleh in this case because he will be questioned as a witness rather than as a suspect. Reyes remarked that Pohl's refusal to allow Saleh to be questioned undermines Nashiri's ability to mount a capital defense [Miami Herald report]. The next hearing in the case is scheduled for April. Nashiri's legal team is trying to decide if it can appeal Pohl's decision.

Nashiri has been at the center of controversy for many years. In November, Nashiri made his first court appearance [JURIST report] for war crimes relating to the bombing of the USS Cole in 2000. In May, Nashiri's lawyers filed suit against Poland [JURIST report] over his alleged torture in that country. In September 2010, a human rights group, Open Society Justice Initiative [advocacy website], filed a request [JURIST report] with Polish prosecutors for an investigation into the detention and torture of Nashiri in a secret CIA prison.




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Syria president orders referendum on new constitution
Jennie Ryan on February 15, 2012 12:53 PM ET

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[JURIST] Syrian President Bashar al-Assad [BBC profile; JURIST news archive] on Wednesday ordered a referendum on a new constitution. The new constitution reportedly omits a clause [RFE/RL report] in the old document that describes the ruling Ba'ath Party as the "leader of the nation and society." The expressed intent of that omission is to open the country up to a multiparty political system. The order for a referendum comes as the country is facing increasing unrest and violence in the wake of the government crackdown on protesters. Critics of Al-Assad's regime, including Shadi Hamid, director of research for the Brookings Doha Center [official website], have called the referendum insufficient. The referendum on the new constitution is set to take place on February 26.

The growing unrest in Syria has drawn copious international attention recently. Earlier this week, UN High Commissioner for Human Rights Navi Pillay, in a speech to the UN General Assembly, called for the UN Security Council to refer the situation in Syria to the International Criminal Court (ICC). Pillay urged an investigation of Syrian government and military officials for possible crimes against humanity. The UN Children's Fund (UNICEF) claimed earlier in February that the past 11 months of violence in Syria have led to the deaths of hundreds of children. In January, UN Secretary-General Ban Ki-Moon demanded [JURIST reports] that al-Assad end violence against Syrian civilians. The UN Office of the High Commissioner for Human Rights reports that more than 5,000 people have died since anti-government protests began last March.




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Colorado lawmakers consider civil union bill
Rebecca DiLeonardo on February 15, 2012 12:33 PM ET

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[JURIST] The Colorado Senate Judiciary Committee [official website] heard testimony [senate calendar, PDF] on Wednesday in consideration of a proposed bill [SB12-002 text, PDF] that would grant same-sex couples the right to civil unions. Same-sex couples traveled to Denver to testify [AP report] on behalf of the bill. The bill explicitly provides same-sex couples with many of the benefits held by married couples, including dependent insurance coverage and the ability to adopt a partner's child. It goes on to provide that "all legal benefits, protections, and responsibilities of spouses ... apply in like manner to parties in a civil union." A similar bill passed in the Colorado Senate last year [JURIST report], but was ultimately defeated in the House [Reuters report]. The bill received no sponsorship from the Republican-controlled House of Representatives, and House Speaker Frank McNulty has voiced opposition. The Colorado constitution defines marriage as a union between one man and one woman.

Issues surrounding same-sex marriage [JURIST backgrounder] continue to occupy discussions among lawmakers and judges. On Tuesday the New Jersey Senate voted to approve a bill [JURIST report] that, if passed, would legalize same-sex marriage in the state. Washington Governor Christine Gregoire signed legislation [JURIST report] Monday legalizing same-sex marriage, making Washington the eighth jurisdiction in the US to offer marriage to same-sex couples. Earlier this month, the US Court of Appeals for the Ninth Circuit ruled that Proposition 8, California's ban on same-sex marriage, is unconstitutional [JURIST report]. In January, an Iowa District Court ordered that the Iowa Department of Public Health include both names [JURIST report] of married same-sex parents on children's birth certificates.




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UN calls for ratification of ban on child soldiers
Jennie Ryan on February 15, 2012 12:29 PM ET

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[JURIST] The UN envoy for Children and Armed Conflict [official website] on Monday urged [press release] all nations to ratify a treaty protocol that would criminalize recruitment of child soldiers and set the minimum age of recruitment at 18. The Optional Protocol on the Involvement of Children in Armed Conflict of the Convention on the Rights of the Child [text] seeks to prevent children from taking part in conflicts. In a statement timed to coincide with the 10th anniversary of the Optional Protocol, the Special Representative of the Secretary-General for Children and Armed Conflict Radhika Coomaraswamy, pleaded that all states must ratify the Protocol: "Every country, big or small, with or without a standing army, at peace or in conflict, has a role to play in abolishing the inhumane practice of recruiting and using children in war." The treaty protocol has already been ratified by about three quarters of UN member states and needs ratification in an additional 49 states to make the protocol universal.

The problem of recruitment of child soldiers [JURIST news archives] is ongoing in many nations. In 2006, prosecutors at the International Criminal Court (ICC) [official website] formally charged [JURIST report] Thomas Lubanga, founder of the militant Union of Patriotic Congolese, accusing him of enlisting child soldiers in the violence-plagued Ituri district of the Democratic Republic of the Congo (DRC). His trial began in January 2009 after being delayed for evidentiary reasons and was halted soon after when one of the child witnesses recanted his testimony [JURIST reports] that Lubanga had recruited him for the militia. In August of last year, the ICC concluded [JURIST report] Lubanga's trial after two years. A verdict is expected in the case early this year.




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Canada judge rules mandatory minimum sentence for firearm possession unconstitutional
Jerry Votava on February 15, 2012 12:10 PM ET

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[JURIST] The Ontario Superior Court [official website] on Monday issued an opinion [text] refusing to impose a mandatory minimum sentence established by the Canadian federal government for firearm possession, declaring the guideline unconstitutional. Justice Anne Molloy ruled in the case of Leroy Smickle, who was convicted of possessing a loaded handgun. The Canadian government stipulates [95(1) of the Criminal Code text] that any party found guilty of that crime shall be sentenced to a minimum imprisonment of three years. Molloy found no malicious intent in Smickle's actions, and recognized that this conviction was his first as a mitigating factor. Smickle's defense counsel argued that the mandatory sentence amounted to cruel and unusual punishment prohibited by the Canadian Charter of Rights and Freedoms [text], Canada's constitution, and Molloy agreed:
The only goal or principle of sentencing that would arguably be met by the imposition of this sentence would be denunciation and general deterrence. However, the case law is clear that general deterrence alone cannot justify the imposition of a sentence that is otherwise grossly disproportionate to what an offender deserves. To take that principle to the extreme, a mandatory sentence of life imprisonment for shoplifting would no doubt act as a general deterrent, but it would shock the public conscience to impose such an onerous punishment, for example, on a young single mother with no criminal record who steals a loaf of bread from Walmart.
The results of this case, and recent case Regina v. Nur [text], where a similar sentence was upheld, have combined to present a significant challenge to Canada's current mandatory minimum sentence requirements. The issue may warrant an appeal [The Globe and Mail report] to the Supreme Court of Canada [official website].

Mandatory minimum sentences have also been and issue in the United States, where the US Supreme Court issued a ruling [JURIST report] in May of 2010 allowing mandatory minimums but elevating the standards of proof required in federal gun crimes. Some commentators have suggested [JURIST op-ed] that mandatory minimum sentences should also be disfavored because of their tendency to increase the load of prisons on governmental budgets and unnecessarily increase the non-violent prisoner population.




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Virginia House of Delegates approves personhood legislation
Katherine Getty on February 15, 2012 11:37 AM ET

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[JURIST] The Virginia House of Delegates [official website] passed a bill [HB 1text, PDF; materials] Tuesday that defines life as beginning at conception. The bill passed 66-32 [floor vote] moving the state toward banning abortion [JURIST news archive]. The bill, introduced by Rep. Bob Marshall (R) [official website], says: "Life of each human being begins at conception" and that "Unborn children have protectable interests in life, health, and well-being." The bill seeks to expand the rights of personhood under state law to unborn children at all stages development from conception:
The laws of this Commonwealth shall be interpreted and construed to acknowledge on behalf of the unborn child at every stage of development all the rights, privileges, and immunities available to other persons, citizens, and residents of this Commonwealth, subject only to the Constitution of the United States and decisional interpretations thereof by the United States Supreme Court and specific provisions to the contrary in the statutes and constitution of this Commonwealth.
It will head to the Virginia Senate where it is unclear whether it will pass [Reuters report]. With this bill, Virginia lawmakers are attempting to pass such legislation without running into the difficulty of amending the state constitution that has hindered similar attempts in other states. Constitutional amendments redefining personhood failed in both Colorado and Mississippi [JURIST reports].

The Virginia Senate recently approved legislation requiring a woman to have an ultrasound before an abortion [JURIST report]. Last November, Mississippi voters rejected a ballot measure [Initiative 26 materials] that would have amended the state constitution to define the word "person" or "persons" to include "every human being from the moment of fertilization, cloning, or the functional equivalent thereof." The initiative, which would have given fetuses rights from the moment of conception, was defeated by more than 55 percent of the state's voters. The primary goal of the legislation was an attempt to make abortion illegal on the theory that a woman's right to choose an abortion cannot outweigh the fetus' right to life. Colorado voters rejected a similar state constitutional amendment in November 2010. JURIST Guest Columnist Caitlin Borgmann [profile] argues that redefining personhood is just one of several approaches aimed at curtailing abortion [JURIST op-ed].




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NJ Senate votes to approve same-sex marriage
Sung Un Kim on February 14, 2012 1:56 PM ET

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[JURIST] The New Jersey Senate [official website] on Monday voted 24-16 to approve the Marriage Equality and Religious Exemption Act [text, PDF], a bill which, if enacted, would legalize same-sex marriage [JURIST backgrounder] in the state. Under the bill, marriage would be defined as the "legally recognized union of two consenting persons in a committed relationship." The legislation would not require any member of the clergy or religious institution to perform same-sex marriages, or provide space for same-sex marriage services. The bill would also effectively end the state's current civil union system, with all partners currently in civil unions being deemed married. The NJ State Assembly is expected to vote on the bill Thursday, and if it is approved the legislation will move to Governor Chris Christie [official website] for his signature or veto. Christie has indicated that he plans to veto the bill [WSJ report], suggesting that the same-sex marriage issue should be put on the ballot for New Jersey citizens to decide. Senate President Stephen Sweeney [official website] has expressed confidence [Star-Ledger report] in being able to override a veto by Christie, and rejected the idea of a public referendum on a civil rights issue. In order to override such a veto, 27 votes will be needed in the Senate and 54 votes in the Assembly.

The approval of the bill by the NJ Senate marks a shift on the issue of same-sex marriage in the state from last year, when a similar bill was defeated [JURIST report] in the Senate. In November, a lawsuit [JURIST report] was allowed to continue in New Jersey, which seeks declaratory and injunctive relief against the state civil union law as a contravention of both the Fourteenth Amendment [Cornell LII backgrounder] and the New Jersey State Constitution. On Monday, Washington Governor Christine Gregoire [official website] signed legislation [HB 6239] legalizing same-sex marriage [JURIST report], and making Washington the eighth jurisdiction in the US to offer marriage to same-sex couples. Same-sex marriage has previously been legalized in New York, Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and the District of Columbia [JURIST reports]. The case for same-sex marriage was recently made by JURIST contributor Kimberly Bennett in Judicial Activism and the Recognition of Same-Sex Marriage [JURIST op-ed].




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Tunisia court drops charges against former PM of Libya
Brandon Gatto on February 14, 2012 1:29 PM ET

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[JURIST] A Tunisian court on Tuesday dropped charges against former Libyan prime minister Al Baghdadi Ali al-Mahmoudi [JURIST news archive] for illegally entering the country, but the former figurehead under the regime of Muammar Gaddafi [BBC obituary; JURIST news archive] remains in jail until a final decision on his extradition to Libya. The court dismissed the charges [Reuters report] after determining that al-Mahmoudi had lawfully crossed into Tunisia from Libya. Al-Mahmoudi's lawyer has indicated that he is attempting to have him released from custody while awaiting the extradition process. This decision comes following negotiations between the Tunisian interim government, led by President Moncef Marzouki [official website, in Arabic], and the Libyan National Transitional Council (NTC) [official website] concerning the circumstances of extraditing al-Mahmoudi back to Libya. Marzouki has stated that the approval of the extradition would depend on adequate reassurances from Libya that al-Mahmoudi would be treated humanely if transferred to Libyan custody. The decision also comes despite several human rights groups arguing against the former prime minister's extradition.

In January, the Tunisian League for the Defense of Human Rights, Amnesty International, and Human Rights Watch (HRW) [advocacy websites], among other human rights groups, urged [JURIST report] Tunisia not to extradite al-Mahmoudi because he would be "at a real risk for torture" if returned to Libya. At the time, reports indicated that al-Mahmoudi feared for his safety and claimed to be the sole possessor of Libyan state secrets following Gaddafi's death in October [JURIST reports]. Some commentators have argued that former African leaders accused of human rights violations should be tried in their home countries [JURIST op-ed]. Tunisia ordered al-Mahmoudi's extradition in November, prompting a response from HRW [JURIST reports]. Al-Mamoudi was arrested in Tunisia in September 2011, and his extradition is one of many legal episodes within the ongoing effort by Libyan and international courts to investigate officials [JURIST reports] in the former Gaddafi regime.




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China court indicts top fugitive on bribery charges
Sung Un Kim on February 14, 2012 12:51 PM ET

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[JURIST] A local Chinese court in Xiamen on Monday indicted Lai Changxing [CNTV backgrounder] on charges of bribing Chinese government officials and running a Xiamen-based network that smuggled large quantities of goods during the 1990s. As chairman of the Yuanhua Group in Xiamen, Lai allegedly smuggled [Reuters report] billions of dollars worth of various goods including cigarettes and cars, as well as oil and other chemicals. In order to smuggle the goods through Chinese customs, Lai allegedly bribed government officials with significant amounts of money. More than 200 senior government officials have been implicated in the smuggling ring. The date of trial is still unknown, but if Lai is convicted the Chinese government has indicated that he will face life imprisonment rather than the death penalty. According to state-run media reports, Lai has confessed to all charges [Xinhua report] against him.

Lai fled to Canada with his ex-wife and three children in 1999, when the charges were first brought against him. He was able to obtain refugee protection from the Chinese judiciary system, which allowed the death penalty for his alleged crimes. In 2006, Canada stayed Lai's deportation [JURIST report] based on claims that he would face torture and execution if compelled to return to China. Canada's law prohibits deportations of refugees to countries that use torture as common practice. In July 2011, the Canadian government allowed the deportation of Lai [BBC report] based on assurances from the Chinese government that he would not face capital punishment for his crimes.




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Ninth Circuit hears education challenge to CA affirmative action ban
Brandon Gatto on February 14, 2012 12:34 PM ET

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[JURIST] The US Court of Appeals for the Ninth Circuit [official website] on Monday heard oral arguments from minority student advocates who urged the court to reconsider California's voter-approved ban on affirmative action based on race or gender preferences in education and state hiring. The ban, Proposition 209 [text], has been upheld by California courts as a race-neutral measure. Though the measure bars state and local agencies from considering race or gender in employment, contracting, and education, 55 applicants to the University of California (UC) schools of higher education and the Coalition to Defend Affirmative Action (CDAA) [advocacy website] brought this lawsuit to challenge only the higher education element. The students and CDAA claim that affirmative action is needed [Mercury News report] to increase racial diversity at UC campuses and professional schools, and that data shows that UC's efforts to enroll diverse student populations without considering race have failed. On the other hand, Ralph Kasarda, who is defending Proposition 209 on behalf of the university system, argued that the lawsuit is "redundant and baseless," and that the measure "guarantees everyone's right to be treated fairly and not be discriminated against based on skin color or gender."

In October 2011, California Governor Jerry Brown vetoed [JURIST report; veto text, PDF] a bill [text, PDF] that would have effectively overturned Proposition 209 by allowing UC schools to consider demographic factors such as race during the admissions process. The Governor said in his veto message to the Senate that although he agreed with the bill's purpose, it is the role of the Ninth Circuit to decide Proposition 209's boundaries. Governor Brown previously contested [opinion letter, PDF; JURIST report] Proposition 209 in 2009 as California's Attorney General. The CDAA's suit was originally dismissed in December 2010 by the US District Court for the Northern District of California
[official website] in Coalition to Defend Affirmative Action v. Schwarzenneger [text, PDF].




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UN rights chief again urges referral of Syria to ICC
Max Slater on February 14, 2012 12:27 PM ET

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[JURIST] UN High Commissioner for Human Rights Navi Pillay [official profile; JURIST news archive], in a speech [text] to the UN General Assembly on Monday, called for the UN Security Council to refer the situation in Syria to the International Criminal Court (ICC) [official website]. Pillay urged an investigation of Syrian government and military officials for possible crimes against humanity. She emphasized that the international community needed to hold Syrian officials accountable for their alleged human rights abuses:
The Fact-Finding Mission, the Commission of Inquiry on Syria, and I myself have all concluded that crimes against humanity are likely to have been committed in Syria. I have encouraged the Security Council to refer the situation to the International Criminal Court. All Member States must ensure that these crimes do not go unpunished. The Universal Declaration for Human Rights, adopted by this Assembly more than 60 years ago, makes clear that it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law. The people of Syria are asking for the rights that every human being is entitled to.
Pillay cited reports indicating that Syrian security forces have killed more than 5,400 people since violence between President Bashar al-Assad's government and anti-government protesters began eleven months ago.

Pillay, as well as numerous human rights groups, have called for both an end to violence in Syria and ICC prosecution of Syrian officials. On Friday, the UN Office of the High Commissioner for Human Rights (OHCHR) [official website] requested [JURIST report] that Syrian officials suspected of crimes against humanity be tried before the ICC. Pillay has addressed the UN Security Council twice to urge ICC prosecutions [JURIST reports]. Last week the UN Children's Fund (UNICEF) [official website] claimed that 11 months of violence in Syria has led to the deaths of hundreds of children [JURIST report]. Earlier this month Human Rights Watch (HRW) [advocacy website] accused the Syrian army of torturing children [JURIST report]. In January, UN Secretary-General Ban Ki-Moon [official profile] demanded [JURIST report] that President Assad end violence against Syrian civilians. In November, HRW declared that Syrian forces were committing crimes against humanity [JURIST report], including torture and unlawful killings of anti-government protesters. JURIST contributing editor Chibli Mallat has argued that a UN Security Council resolution would not have affected meaningful change [JURIST op-ed].




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US State Department sends experts to Haiti to strengthen Haitian courts
Max Slater on February 14, 2012 11:41 AM ET

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[JURIST] The US Department of State (DOS) [official website] on Monday dispatched a team of international law experts to Haiti to assess how to reinforce the Haitian judiciary's power and independence, according to Haitian Prime Minister Garry Conille [official website, in French]. Conille said that one of the experts' goals would be to investigate a ruling [AP report] involving former Haitian ruler Jean-Claude Duvalier [CBC profile; JURIST news archive]. The ruling, handed down two weeks ago, stated [JURIST report] that Duvalier will not face trial for crimes against humanity, including torture, rape and murder during his reign from 1971 to 1986. The ruling prompted an outcry from plaintiffs, as well as human rights groups, who have accused the Haitian government of influencing the judiciary. Though Haitian President Michel Martelly [NYT profile] has denied any involvement with the Duvalier case, Conille requested that the DOS's experts investigate the possibility of a corrupted ruling and help strengthen the judiciary, emphasizing the need for the courts to inspire confidence in the Haitian people.

The rule of law in Haiti has been a contentious issue recently. Last week, UN independent expert Michel Forst proclaimed that the rule of law is making significant progress in Haiti [JURIST report]. Forst focused on the establishment of judicial offices and the adoption of the International Covenant on Economic, Social and Cultural Rights [text, PDF]. In January, a Haitian judge convicted eight police officers [JURIST report] of shooting and killing at least ten prisoners following the January 2010 earthquake. In December, the UN urged an investigation [JURIST report] into alleged torture and unlawful killings perpetrated by the Haitian National Police (HNP) [official website, in French]. In September, Amnesty International (AI) [advocacy website] called on Haitian authorities to prosecute Duvalier [JURIST report] for crimes against humanity. In July, a UN rights expert requested that Haiti prosecute Duvalier [JURIST report] and improve its human rights record.




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Apple asks Federal court to grant injunction against Samsung phone production
Jamie Davis on February 14, 2012 7:03 AM ET

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[JURIST] Apple [official website; Bloomberg backgrounder] requested that the US District Court for the Northern District of California [official website] grant a preliminary injunction against Samsung [official website; Bloomberg backgrounder] on Wednesday, to block the company from selling its new phone, the Galaxy Nexus [official profile]. The smartphone uses Google's newest version of Android [official website] called Ice Cream Sandwich, which Apple alleges infringe on four patents [Apple Insider report] held by Apple. The patents describe features that allow users to search by using a voice command, slide an image to unlock the phone, an autocorrect function for typing and the structure [patent texts] of the operating system (OS). The Galaxy Nexus is the first phone to use Ice Cream Sandwich, the newest version of popular smartphone OS Android. Samsung acknowledged the lawsuit on Monday and stated that they will continue to defend against Apple's intellecutal property suits. It is unsure when the injunction request will be ruled on.

Apple brought a different claim against Samsung last year in the same court alleging that Samsung copied certain features and used similar icons to the iPhone and iPad. In December, District Judge Lucy Koh ruled against Apple and declined to issue a preliminary injunction against Apple in its first claim against Samsung. Apple may still prevail on its claims, but needs to prove both infringement and validity. Apple has also been involved in other lawsuits with Android affiliated companies. In December the US International Trade Commission (USITC) ruled for Apple in its suit against HTC alleging patent infringements. In November the USITC found that Apple did not violate four of HTC's patents. In July USITC ruled that HTC infringed two Apple patents [JURIST reports] relating to the Android operating system.




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Washington legalizes same-sex marriage
Jamie Reese on February 13, 2012 6:15 PM ET

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[JURIST] Washington Governor Christine Gregoire [official website] signed legislation [HB 6239] Monday legalizing same-sex marriage [JURIST backgrounder], making Washington the eighth jurisdiction in the US to offer marriage to same-sex couples. Washington had previously granted expanded domestic partnership rights [JURIST report] rather than full marriage or civil union rights to same-sex couples. Gregoire's signature completed a campaign for marriage rights that started in 2006. Gregoire, a strong personal advocate of same-sex marriage, stated [press release] after signing:
As governor for more than seven years, this is one of my proudest moments. And most surely today is a proud day in the history of the Legislature and the state of Washington. It is a day historians will mark as a milestone for equal rights. A day when we did what was right, we did what was just, and we did what was fair. We stood up for equality and we did it together- Republicans and Democrats, gay and straight, young and old, and a variety of religious faiths. I'm proud of who and what we are in this state.
Opponents of same-sex marriage have promised to challenge the imminent law with a referendum, similar to Proposition 8 [text, PDF; JURIST news archive] in California. The US Court of Appeals for the Ninth Circuit [official website] ruled [JURIST report] earlier this week that Proposition 8 is unconstitutional. If a ballot initiative in Washington is not achieved, same-sex marriages could begin as early as June.

The Washington state House of Representatives approved the bill to legalize same-sex marriage last Thursday while the Senate passed the bill [JURIST reports] two weeks ago. New Jersey is also considering legalizing same-sex marriage soon, although it currently has a civil union system in place. In November, a lawsuit [JURIST report] was allowed to continue in New Jersey, which seeks declaratory and injunctive relief against the state civil union law as a contravention of both the Fourteenth Amendment [Cornell LII backgrounder] and the New Jersey State Constitution. Same-sex marriage has been legalized in New York, Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and the District of Columbia [JURIST reports]. The case for same-sex marriage was recently made by JURIST contributor Kimberly Bennett in Judicial Activism and the Recognition of Same-Sex Marriage [JURIST op-ed].




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Trial for 7 members of US militia group Hutaree begins in Michigan federal court
Jamie Davis on February 13, 2012 1:49 PM ET

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[JURIST] The trial of seven of nine indicted Hutaree [CNN backgrounder] militia members began with jury selection and opening statements [case docket] Monday in the US District Court in the Eastern District of Michigan [official website]. Nine members of the militia were indicted [JURIST report] in March 2010 on charges of seditious conspiracy, attempted use of weapons of mass destruction, teaching the use of explosive materials, and possessing a firearm during a crime of violence in connection with a plan to kill Michigan law enforcement officers. Lawyers for the Hutaree militia maintain that the anti-government statements made by militant members were not serious threats [AP report] and were made only in frustration. The government maintains that the Hutaree militia's primary aim was to fight law enforcement authorities who belonged to the "New World Order". One of the nine militia members charged has already agreed to plead guilty, while another is set for a separate trial.

In May 2010, federal Judge Victoria Roberts granted bail for the nine members of the group. Roberts ruled that bail would be granted [JURIST report] but that the eight men and one woman must relinquish weapons and weapons permits, remain confined to their homes, and be kept under electronic surveillance. The group members allegedly planned to kill [AP report] Michigan law enforcement officers by, among other methods, making phony 911 calls and ambushing those who responded. There is some evidence that right-wing nativist and so-called "patriot" anti-government militias such as the Hutaree are on the rise in the US. A 2009 report by the Southern Poverty Law Center (SPLC) [advocacy website] noted that these groups are making a comeback [JURIST report] after declining for a number of years. The SPLC said that such groups are generally anti-tax, anti-immigration, and increasingly racially motivated since the election of the country's first African-American president, Barack Obama. The SPLC also warned that these groups could soon pose a security risk to the country, quoting one official as saying "[a]ll it's lacking is a spark. I think it's only a matter of time before you see threats and violence."




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Indonesia trial begins for Bali nightclub bombing suspect
Jamie Reese on February 13, 2012 11:26 AM ET

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[JURIST] The first trial of alleged Indonesia bomber Umar Patek began Monday in the West Jakarta District Court over his role in several terrorist plots including the Jakarta church bombings in 2000 and the 2002 Bali nightclub bombing [BBC backgrounder]. Patek was arrested [Jakarta Post report] in Abbottabad, Pakistan, in 2011, just a few weeks before US special forces killed Osama Bin Laden [JURIST news archive] in the same town. If convicted Patek could face life imprisonment or a death sentence. Patek is not facing terrorism charges under Indonesia law, since the terrorism law came into effect in 2003 after both bombings and cannot be applied retrospectively [BBC News report]. Patek is believed to be a member of the alleged terrorist organization, Jemaah Islamiyah (JI) [CFR backgrounder; JURIST news archive], which claimed responsibility for the Bali nightclub bombings. His trial is expected to last for months.

Patek was extradited to Indonesia [JURIST report] from Pakistan in August 2011. JI claimed responsibility for the 2002 Bali nightclub bombings, which killed 202 people and injured 240 others. JI was also implicated in the 2004 bombing of the US embassy in Jakarta and a series of further bombings in Bali in 2005. In 2010, the Obama administration considered bringing charges in a Washington, DC, federal court against the suspected planner [JURIST report] of the nightclub bombing, Guantanamo Bay [JURIST news archive] detainee Riduan Isamuddin [BBC profile]. Isamuddin, also known as Hambali, is the former military commander of JI and was allegedly the main link between JI and al Qaeda [Global Security backgrounder; JURIST news archive] before his capture in 2003. In 2008, three JI members were executed [JURIST report] after being convicted by a Indonesia court for their involvement in those bombings. Before their executions, the three men had called on Islamic militant groups to carry out retribution attacks, which resulted in stepped-up security in the Indonesian capital of Jakarta and a warning issued by the US embassy in Indonesia.




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Greece parliament approves austerity measures
Sarah Posner on February 13, 2012 10:04 AM ET

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[JURIST] The Greek Parliament [official website, in Greek] approved austerity measures late Sunday, securing a second bailout for the country to avoid bankruptcy amidst rioting and violence in downtown Athens. A total of 199 lawmakers voted for the measures [Bloomberg report] with 74 members of parliament voting against the package. Protesters clashed with police outside parliament after the vote, looting and burning buildings in reaction to the new budget measures that will eliminate public sector jobs and lower wages and pension plans. Prime Minister Lucas Papademos [official profile] denounced the violence, regarded as the worst since 2008, which continued into Monday. Papademos had warned [Reuters report] that rejecting the package would jeopardize Greece's standing in the European community. Finance ministers from euro-based countries, who previously demanded that Greece pass budget cuts, will meet this week to decide whether to approve a second aid package for the country.

In July, UN Office of the Commissioner on Human Rights [official website] Independent Expert on foreign debt and human rights, Cephas Lumina, warned [JURIST report] Greece that implementation of previous austerity measures to solve its economic crisis [BBC backgrounder] could result in serious violations of basic human rights. The Greek Parliament passed previous austerity measures with $40 billion in budget cuts, in addition to selling $72 billion in state assets, under pressure from them International Monetary Fund (IMF), the European Union (EU) and the European Central Bank [official websites], which want to stave off Europe's first sovereign default. The Greek debt crisis is not only a European issue, but tied to the global market. JURIST Guest Columnist Dimitrios Ioannidis argued in June that the deregulation of US financial markets coupled with the strategic use of complex financial instruments has played a significant role [JURIST op-ed] in the Greek debt crisis.




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Pakistan PM charged with contempt of court
Sarah Posner on February 13, 2012 9:26 AM ET

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[JURIST] The Supreme Court of Pakistan [official website] charged Pakistani Prime Minister Yousuf Raza Gilani [BBC profile; JURIST news archive] with contempt of court Monday for disobeying a court order to open corruption cases against President Asif Ali Zardari [official website]. Gilani appeared before the court and pleaded not guilty, saying he will fight the charges. The Supreme Court claims Gilani defied a court order [BBC report] to ask Swiss authorities to re-open cases against Zardari. Gilani has maintained that charges against President Zardari are politically motivated and the president has immunity as the head of state [Al Jazeera report]. If he is convicted of contempt Gilani could lose his public office [JURIST report] and be sent to prison for up to six months. This is only the second time that contempt charges have been filed against a sitting prime minister in Pakistan's history. The next session is set to take place on February 22.

The Supreme Court issued a summons two weeks ago demanding Gilani appear [JURIST report] at Monday's contempt hearing. Last month, Gilani honored previously issued summons by appearing before the Supreme Court to answer contempt charges [JURIST reports] and explain why he failed to purse corruption charges against President Zardari, who is accused of using Swiss bank accounts to fund bribes. The conflict between the prime minister and the court stems from an order that 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. These proceedings reflect an ongoing struggle between the government and the courts in Pakistan. In December, 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.




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UK High Court bans prayer at town council meetings
Jaimie Cremeans on February 12, 2012 4:29 PM ET

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[JURIST] The UK High Court of Justice ruled Friday that the Bideford Town Council does not have authority to conduct prayers at the beginning of its official meetings. The judgment [opinion, PDF] followed a Judicial Review initiated by the National Secular Society (NSS) [advocacy website; press release] to challenge the practice of prayers as part of the formal business of council meetings, attendance at which is mandatory for local councillors. Even though prayer was conducted at meetings before attendance was taken, with councillors told they could abstain from such portions of meetings, the prayer was included in the formal list of items sent to councillors when they were summoned, and was included in the meeting minutes later sent out. Justice Ouseley wrote for the High Court:
The duties of Parish councillors and the way in which a Parish Council must conduct its business are laid down in the Local Government Act 1972 ... There is no specific statutory power to say prayers or to have any period of quiet reflection as part of the business of the Council ... Accordingly, I have come to the view that the Council has no power to hold prayers as part of a formal Council meeting, or to summon Councillors to a meeting at which such prayers are on the agenda.
Ouseley rejected the Council's argument for statutory authority—that it may conduct other "functions" not specifically listed in the Local Government Act—on the basis that prayer is not a "function" under the Act. Ouseley made clear that his ruling does not affect whether Councillors can hold prayer before meetings, but to conduct it at the formal beginning of meetings is not allowed. Ouseley also ruled that if the practice were lawful, that under the law "the manner in which the practice is carried out in the circumstances of Bideford does not infringe" on individual human rights, nor does it unlawfully discriminate on the grounds of an individual's lack of religious belief.

NSS is a British organization committed to promoting separation of church and state. It brought the action against the Bideford Town Council after atheist Council member Clive Bone complained about the prayer. Although NSS was pleased with the judgment, some Christian groups have questioned what its effects will be. Christian Institute [advocacy website; press release] spokesman Simon Calvert noted his group "welcome[s] the finding that the saying of prayers isn't discriminatory, or a breach of equality laws, or human rights laws." He believes the ruling was purely based on statutory construction, not on whether the prayer infringes on rights, so that an amendment or passage of a new law could make prayer at meetings lawful. Last month the US Supreme Court [official website] declined to review [JURIST report] a case concerning whether a county board of commissioners in North Carolina violated the Establishment Clause of the First Amendment [LII backgrounder] by opening their public meetings with prayers.




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Malaysia deports Saudi Arabia reporter facing death penalty
Jaimie Cremeans on February 12, 2012 3:27 PM ET

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[JURIST] Malaysian officials confirmed Sunday that a Saudi reporter facing a possible death penalty charge in his country was handed over to Saudi officials for deportation. Malaysia national spokesman Ramli Yoosuf announced that Hamza Kashgari, 23, was flown back to Saudi Arabia [AP report] under a warrant for arrest issued Monday by Saudi authorities. A lawyer appointed by Kashgari's family has stated that the move was unlawful because he had previously obtained a court order to block deportation. Kashgari faces charges of blasphemy, a crime punishable by death in Saudi Arabia. Kashgari was threatened with death penalty charges after making anti-Muhammad comments on Twitter on Muhammad's birthday last Saturday. Kashgari has since deleted the Tweets and apologized, but that did not stop the public uproar against him. He was arrested upon his arrival [Reuters report] in Malaysia Thursday as part of an Interpol [official website] operation between Saudi and Malaysian police officials. Although the two countries have good relations, Malaysia does not have a specific agreement with Saudi Arabia that would have obligated Kashgari's deportation.

Last month the UN Office of High Commissioner for Human Rights [official website] criticized Saudi Arabia for its increased use of the death penalty [JURIST report], which has tripled since 2010. Human rights groups such as Amnesty International (AI) and Human Rights Watch (HRW) [advocacy websites] have also criticized the country for cruel punishment and lack of human rights protections [JURIST reports]. Malaysia has been recently criticized by the UN [JURIST report] for taking steps away from protecting its citizens' rights to freedom of expression, although in Malaysia blasphemy is not punishable by death. Both AI and HRW [press releases] urged Malaysia not to deport Kashgari.




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Utah court will allow execution by firing squad
Matthew Pomy on February 12, 2012 11:50 AM ET

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[JURIST] Utah's Fourth Judicial District Court [official website] Wednesday granted a death row inmate's request to be put to death by firing squad. Michael Archuleta, 49, was convicted in 1989 of first-degree murder for the beating death of a college student, and is now set to be executed by firing squad [order, PDF] on April 5. Judge Donald Eyre Jr. [official profile] issued the execution warrant under a Utah statute [text] that sets "lethal intravenous injection" as the official method of execution, unless "a court holds that a defendant has a right to be executed by a firing squad, [in which case] the method of execution for that defendant shall be a firing squad." The exemption applies to death row inmates like Archuleta who had already requested a firing squad when they were abolished by statute in 2004. The decision to honor Archuleta's request was likely made to avoid further execution delays that could result from an ongoing shortage of lethal injection drugs, created last year when the main US manufacturer ceased production of a key anesthetic used in the three-drug "cocktail" that makes up a lethal injection. If the execution is carried out, Archuleta will be the fourth prisoner to be put to death by firing squad since the US Supreme Court [official website] reinstated capital punishment [JURIST news archive] in 1976. Each of the other three firing squad executions also took place in Utah.

The last person to be executed by firing squad was Ronnie Lee Gardner [BBC backgrounder], who was put to death [JURIST report] in June 2010 after the US Supreme Court failed to stay his execution. Utah's allowance of execution by firing squad has added to general criticism of the death penalty, which is used in 34 states. Earlier this month Crystal Whalen, a student attorney at the Regional Public Defender's Office for Capital Cases in Lubbock, Texas, wrote in favor of moving away from the death penalty, arguing that death as punishment is unconstitutional [JURIST commentary] under the Eighth Amendment [Cornell LII backgrounder]. In March 2011, Illinois voted to abolish the death penalty entirely [JURIST report]. Two years before that, New Mexico repealed [JURIST report] the use of the death penalty in the state, replacing it with a sentence of life in prison without the possibility of parole. New Mexico was the third state to abolish the death penalty since 1976, joining New Jersey and New York [JURIST reports], each of which abolished the death penalty in 2007.




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Nuclear Regulatory Commission approves first new plant in over 30 years
Matthew Pomy on February 12, 2012 10:37 AM ET

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[JURIST] The Nuclear Regulatory Commission (NRC) [official website; press release] voted Thursday to issue the first US license for a new nuclear power plant in over 30 years. In a 4-1 vote the NRC approved an application by Southern Company [corporate website] for an issuance of two Combined Construction and Operating Licenses (COL), the first such licenses ever approved for a US nuclear plant. The lone dissenting vote was cast by NRC Chairman Gregory Jaczko [official profile], who cited environmental concerns similar to those surrounding the fallout from the March 2011 Fukushima Daiichi nuclear power plant disaster [IAEA backgrounder]. Each COL authorizes a new reactor unit at the Waynesboro, GA, Vogtle Electric Generating Plant [corporate website], which began commercial operation of its two existing reactors in the late 1980s. Following the NRC vote the Georgia Public Service Commission (PSC) [official website] unanimously approved the costs projected by Southern subsidiary Georgia Power [corporate website; press release], whose construction costs for the new Vogtle units are monitored by the PSC via monthly filings and semiannual construction monitoring reports. No nuclear power plants have been licensed in the US [Reuters report] since the partial meltdown of the reactor core of the Three Mile Island plant in Pennsylvania in 1979. Georgia Power hopes to have Vogtle Units 3 and 4 running by 2016 and 2017 respectively.

International reception to nuclear energy has fallen sharply since the the Fukushima disaster. The incident is now considered one of the biggest man-made environmental disasters of all time and the largest nuclear accident since Chernobyl in 1986. In September Laura Frano, a certified legal intern at the University of Pittsburgh Environmental Law Clinic, wrote about the growing popularity of natural gas [JURIST commentary] and other energy sources in the wake of environmental catastrophes like Fukushima and the BP Deepwater Horizon oil spill [JURIST news archive]. In July the US Court of Appeals for the District of Columbia Circuit [official website] dismissed a lawsuit to force nuclear waste storage [JURIST report] at Yucca Mountain. In May the US Court of Appeals for the Third Circuit [official website] upheld the NRC decision to renew the license of the oldest US nuclear plant [JURIST report]. Nevertheless the Fukushima incident has sparked ongoing concern over nuclear policies and their affect on the environment, as Tamar Cerafici of the Cerafici Law Firm noted in April in her call for a coherent US energy policy [JURIST op-ed] that pays more than a begrudging acceptance of nuclear power in the wake of the Fukushima disaster.




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Groups petition Supreme Court to overturn Montana ban on corporate campaign spending
Michael Haggerson on February 11, 2012 3:18 PM ET

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[JURIST] American Tradition Partnership, Montana Shooting Sports Association [advocacy websites] and Champion Painting have petitioned the US Supreme Court [official website] to reverse the decision by the Montana Supreme Court [official website] in Western Tradition Partnership, Inc. v. Montana that upheld a Montana campaign finance law [JURIST report] banning corporate independent expenditures to state political campaigns and candidates. The three groups argue that Montana's century-old ban on corporate spending, implemented by the 1912 Corrupt Practices Act [PPL backgrounder], is illegal [Great Falls Tribune report] in light of the Supreme Court's ruling in Citizens United v. Federal Election Commission [JURIST report], which declared that a state cannot impose a complete ban on corporate spending. The Montana Supreme Court stated that the ban on corporate spending is legal because it still allows for some corporate spending and was in response to rampant political corruption by the "Copper Kings" [Great Falls Tribune backgrounder]. Specifically, the law allows corporations to set up Political Action Committees (PACs) to fund political speech, but PACs are subject to special state disclosure and reporting laws.

Campaign finance [JURIST news archive] has been a hotly contested issue recently. Two weeks ago, the US Court of Appeals for the Seventh Circuit [official website] struck down [JURIST report] a Wisconsin law that prohibited people from donating more than $10,000 per year to political action committees. In June, the US Supreme Court ruled that an Arizona campaign finance regulation violated the First Amendment [JURIST report]. In May, the US Court of Appeals for the Eighth Circuit [official website] upheld [JURIST report] a Minnesota law that prohibited direct contributions to candidates and affiliated entities. The US District Court for the Southern District of New York [official website] ruled in 2009 that a Connecticut campaign finance law discriminated against minor party candidates [JURIST report] in violation of the First and Fourteenth Amendments.

Correction: Prior versions of this article referred to direct corporate campaign contributions opposed to corporate "independent expenditures." Updated February 16, 2012.




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Apple sues Motorola in federal court over patent claims in Germany
Michael Haggerson on February 11, 2012 2:30 PM ET

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[JURIST] Apple [corporate website; Bloomberg backgrounder] brought suit against Motorola Mobility [corporate website; Bloomberg backgrounder] in the US District Court for the Southern District of California [official website] on Friday seeking an injunction to stop Motorola from bringing patent claims against Apple in Germany. Motorola's suit in Germany is over patent no. 6,359,898 [text]. Apple contends that Motorola's German suit violates a licensing agreement between Motorola and Qualcomm [Reuters report]. Apple argues that as a customer of Qualcomm it is a third-party beneficiary of the licensing agreement, thus Motorola's right to assert patent claims is exhausted [The IP Law blog backgrounder]. In the suit, Apple argues that Motorola, which is set to be acquired by Google [corporate website; Bloomberg backgrounder], is violating its promise [Patently Apple report] to license essential patents on "fair, reasonable and non-discriminatory" terms and is attempting to halt sales of the iPhone 4S. Many commentators have expressed concern [Pando Daily report] over Google's acquisition of Motorola's vast patent portfolio, which includes patent on 4G and 3G technologies, but Google has made assurances that it will license its patents fairly and cap licensing fees at 2.25% of the sale price of each phone.

Apple is involved in litigation all over the world over smart phones and related technology. In December the US International Trade Commission (USITC) [official website] narrowly ruled for Apple [JURIST report] against HTC [corporate website; Bloomberg backgrounder]. Earlier that month, the European Commission for Competition [official website] announced that it would open an investigation [JURIST report] into whether Apple colluded with publishers to increase the price of e-books. Also in December, the US District Court for the Northern District of California [official website] declined to issue a preliminary injunction [JURIST report] against Samsung Electronics [corporate website; Bloomberg backgrounder], as requested by Apple in its suit over Samsung's "Galaxy" line of products. In August more than 26,000 South Koreans joined a class action lawsuit against Apple for collecting users' data without their consent [JURIST report].




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UN concerned over prosecution of Spain judge Garzon
Jamie Davis on February 11, 2012 10:54 AM ET

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[JURIST] The UN Office of the High Commissioner for Human Rights (OHCHR) [official website] on Friday expressed its concern over the trial of Spanish Judge Baltasar Garzon [BBC profile], which involve his investigations of acts that occurred during the Spanish Civil War. Spokesperson for the OHCHR, Rupert Colville, indicated that judges should not be criminally charged for investigations [UN report] performed within the scope of their judicial duties. Colville stated, "judges should not be subject to criminal prosecution for doing their job...Spain is obliged under international law to investigate past serious human rights violations, including those committed during the Franco regime, and to prosecute and punish those responsible." Garzon is on trial on charges of exceeding his jurisdiction by investigating complaints he received that, if true, would constitute crimes against humanity occurring under the rule of Francisco Franco [BBC backgrounder] between 1936 and 1951. The investigations and rulings by Garzon are argued to be illegal because of amnesty laws limiting the statute of limitations for bringing claims of human rights violations during the Franco regime. Colville also reminded Spain of a OHCHR recommendation given in 2009 to reform its amnesty law, arguing that its law was not in accordance with international human rights law.

Last month, Garzon took the stand to defend his actions [JURIST report] in ordering the probe into crimes committed under Franco. Garzon refused to answer questions [CNN report] posed to him by the prosecution but did answer questions from his defense lawyer. He denied that his investigation was politically motivated, and stated that he was seeking justice for the victims of the alleged crimes. Garzon also rejected the idea that a 1977 amnesty law covers widespread human rights abuses. 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. 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]. 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. Garzon was convicted [JURIST report] on Thursday by the Spanish Supreme Court [official website, in Spanish] on charges of approving illegal wire taps, and was given an eleven year suspension from the judiciary. He is still awaiting a third trial on bribery charges over money he received for seminars conducted in the US.




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Federal appeals court refuses to reconsider Texas sonogram law
Jamie Davis on February 11, 2012 9:44 AM ET

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[JURIST] The US Court of Appeals for the Fifth Circuit [official website] on Friday denied a request [press release] filed by the Center for Reproductive Rights (CRR) [advocacy website] to hold an en banc hearing to reconsider a challenge to a Texas law that requires doctors to perform a sonogram on women before an abortion [JURIST news archive]. The court's refusal means that the appeals court's original decision [opinion, PDF] that the law is enforceable will stand. The Texas law [HB 15, PDF] has been controversial because it requires doctors to describe the details of the sonogram to the woman and also let her hear the fetal heartbeat, regardless of whether she refuses. The CRR originally filed suit [press release] in June 2011 on the basis that the law violates women's basic reproductive rights and doctors' First Amendment [text] right against compelled speech.

A District Court judge ruled last week that Texas can begin to enforce the law [JURIST report] immediately, while criticizing the Appeals Court's decision on the grounds that it infringed upon First Amendment rights of doctors. Texas Governor Rick Perry signed the measure into law in May, but it was blocked in August after a challenge [JURIST reports] from the CRR. Laws similar to the Texas law have also been considered in other states. Early this month, the Virginia Senate approved a bill [JURIST report] that would require women seeking an abortion to have an ultrasound before the procedure. In October, a judge for the US District Court for the Middle District of North Carolina issued a preliminary injunction [JURIST report], blocking part of the state's abortion law that required a physician to perform an ultrasound and describe the images to the patient. In March 2010, the Supreme Court of Oklahoma ruled [JURIST report] that a state law imposing broad restrictions on abortion, including the requirement of an ultrasound prior to the procedure, violated that state's constitution.




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Former Croatia interior minister pleads not guity to war crimes charges
Jerry Votava on February 10, 2012 4:30 PM ET

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[JURIST] Former Croatian military commander and senior interior minister Tomislav Mercep [official profile, in Croatian] pleaded not guilty Friday for war crimes committed against Serbians during the 1990s conflict in the Balkans. The Municipal Court in Zagreb charged that he was aware of atrocities against civilians [JURIST report] but prevented other officials from mitigating damages against them. Mercep has also been charged with with ordering detentions, torture and executions of Serbian civilians. Mercep was arrested [JURIST report] in December 2010. His plea and trial are some of the requirements of dealing with past war crimes before Croatia's admittance to the EU, which is expected in 2013 [Reuters report].

Amnesty International (AI) [advocacy website] released a report [text, PDF] calling for the prosecution of individuals responsible for war crimes the day before Mercep's arrest. In November 2010, a Croatian court sentenced [JURIST report] six men to 15 to 40 years in prison for their roles in the 2008 killing of a Croatian journalist. In 2008, AI called on the EU to use Croatia's status as a candidate country to ensure that the Croatian government actively investigates and prosecutes [JURIST report] suspected war criminals. AI criticized the slow pace of war crimes investigations, and noted that Croatian courts have mostly focused on crimes allegedly committed by ethnic Serbs even though Croats have also been accused of ethnic-based war crimes.




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Rights group urges South Sudan to prosecute those responsible for ethnic violence
Jaimie Cremeans on February 10, 2012 2:47 PM ET

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[JURIST] Human Rights Watch [official website] Director Daniel Bekele [HRW profile] on Friday urged South Sudan to investigate [HRW report] attacks made on Murle villages in December and prosecute those responsible. In this organized attack [UN News Centre report], thousands of armed Lou Nuer villagers invaded the Murle villages, robbing and burning houses and killing thousands of people. South Sudan's government has claimed repeatedly that it will investigate [South Sudan government news reports] the attacks and punish those who are responsible, but HRW says that no progress has been made. "For speed and credibility's sake, the government should ask the UN and African bodies for help," Bekele said. Since the December attack, there have been retaliation attacks [Sudan Tribune report] made by Murles, and threats of another full-scale attack [press release] by the Lou Nuers have been made.

The UN has been closely monitoring the situation and providing humanitarian relief [UN News Centre report] to victims of the attacks but has called on the South Sudan government to take control of the situation. The Lou Nuers and Murles have been at odds for hundreds of years [VOA report], attacking each others' villages to steal cattle. It is only recently that these raids have become as organized and deadly as the December Lou Nuer attack. Acquisition of deadly weapons, partially due to creation of militias during the country's recent civil war, which resulted in the secession of South Sudan [JURIST report], has taken the violence to a new level, causing heightened concern from the UN and human rights groups.




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UN rights office calls for ICC trial for Syria officials
Jerry Votava on February 10, 2012 2:06 PM ET

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[JURIST] The UN Office of the High Commissioner for Human Rights (OHCHR) [official website] Friday reiterated its call for international action to protect civilians in Syria [JURIST news archive], calling for Syrian officials suspected of crimes against humanity to be tried before the International Criminal Court (ICC) [official website]. High Commissioner Navi Pillay [official profile] is now scheduled to address the UN General Assembly [UN News Centre report] on Monday regarding the latest humanitarian developments in Syria, where the ongoing uprising challenging the autocratic rule of President Bashar Assad has resulted in a bloody government crackdown that has seen more than 5,000 people killed since March. Reports of increased violence in recent days [Reuters report] prompted Pillay earlier this week to urge international intervention [JURIST report] on behalf of the Syrian people. General Assembly President Nassir Abdulaziz Al-Nasser [official profile] then made a request for Pillay to brief the 193-member Assembly after she argued that the failure of the UN Security Council [official website] to agree on collective action against Syria has encouraged the Syrian government to attack and kill civilians to quash dissent. The General Assembly also plans to discuss at the session a December report by the UN Human Rights Council (UNHRC) [official website] that strongly condemned the recent violence [JURIST report], and upon which the Council passed an emergency resolution calling for the appointment of a special human rights investigator on Syria, the suspension of Syrian security forces suspected of human rights violations and the release of prisoners of conscience held by Syrian authorities. No other UN bodies have acted on the resolution.

The OHCHR has consistently called for an end to the violence in Syria and ICC prosecution of Syrian officials. Pillay has addressed the UN Security Council twice to urge ICC prosecutions [JURIST reports]. Human rights groups have also sharply criticized the Syrian government for using violence against its own people. Earlier this week the UN Children's Fund (UNICEF) [official website] claimed that 11 months of violence in Syria has led to the deaths of hundreds of children [JURIST report]. Earlier this month Human Rights Watch (HRW) [advocacy website] accused the Syrian army of torturing children [JURIST report]. In January, UN Secretary-General Ban Ki-Moon [official profile] demanded [JURIST report] that Syrian President Bashar al-Assad [BBC backgrounder] end violence against Syrian civilians. In November, HRW declared that Syrian forces were committing crimes against humanity [JURIST report], including torture and unlawful killings of anti-government protesters. JURIST contributing editor Chibli Mallat argues that a UN Security Council resolution would not have affected meaningful change [JURIST op-ed].




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Virginia senate approves bill allowing adoption agencies to refuse placement
Matthew Pomy on February 10, 2012 12:46 PM ET

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[JURIST] The Virginia Senate [official website] approved a bill [text, PDF] Wednesday that would allow private adoption agencies to refuse placement to families if the agency, or anyone affiliated with it, disagrees with the proposed placement based on religious beliefs. Effectively, this bill would allow adoption agencies to refuse to adopt to same-sex couples. It has already been passed [JURIST report] by the the Virginia House of Delegates [official website], and Governor Bob McDonnell [official profile] said he will sign the bill if it makes it to his desk. The bill provides, in relevant part:
No private child-placing agency shall be required to consider or consent to any placement of a child for foster care or adoption when the proposed placement would conflict with the religious tenets of any sponsor of the agency or other organization or institution with which the child-placing agency is affiliated or associated. ... Refusal of a private child-placing agency to consider or consent to any placement of a child pursuant to this section shall not form the basis of any claim for damages.
The Virginia Board of Social Services [official website] already adopted similar regulations in December. This legislation would prevent those regulations from being changed.

Last month an Iowa court ruled [JURIST report] that both same-sex parents' names must be recorded on birth certificates. 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. In April the Arkansas Supreme Court struck down [JURIST report] a state ban on adoptions by same-sex couples. The Supreme Court of Mexico in August 2010 upheld a Mexico City law [JURIST report] allowing adoptions by same-sex couples. Two years before that, a Florida court ruled that a state statute [JURIST report] preventing same-sex couples from adopting children was unconstitutional.




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Uganda to drop death penalty from bill criminalizing homosexuality
Michael Haggerson on February 10, 2012 12:00 PM ET

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[JURIST] Ugandan MP David Bahati announced on Friday that clauses mandating the death penalty for "aggravated homosexuality" would be dropped from the controversial bill that would criminalize homosexuality. The bill was reintroduced [JURIST report] to the Parliament of Uganda [official website] on Tuesday in its original form, but Bahati stated that there were plans to remove certain provisions. Bahati said in 2010 that the purpose of the bill was to prevent foreigners from corrupting Ugandan children [YouTube video] by giving them money and convincing them to become homosexuals. Bahati stated that provisions imposing jail time for individuals married to someone of the same sex would also be removed form the bill [AFP report]. The original bill imposed the death penalty on homosexual "repeat offenders" and gay sex where one of the offenders is a minor or has HIV.

Uganda faces an ongoing struggle with anti-gay sentiment in the country. In November the Ugandan High Court [official website] sentenced a man to 30 years in prison [JURIST report] for beating to death prominent gay rights activist David Kato. In January 2011 the Ugandan High Court issued a permanent injunction [JURIST report] and awarded damages to three plaintiffs who were among 100 people alleged to be homosexuals by the Ugandan tabloid newspaper, The Rolling Stone. In January 2010 UN High Commissioner for Human Rights Navi Pillay [official profile] criticized the original anti-gay legislation [JURIST report], saying that it could harm Uganda's reputation internationally. In February 2010, US President Barack Obama and Secretary of State Hillary Clinton [official website] publicly denounced the proposed legislation [JURIST report]. Uganda currently criminalizes homosexual behavior [BBC report] with up to 14 years in prison.




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UN rights office expresses concern over deaths in South America prisons
Matthew Pomy on February 10, 2012 11:35 AM ET

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[JURIST] Amerigo Incalcaterra, the regional representative for South America [official website, Spanish] from the UN Office of the High Commissioner for Human Rights (OHCHR) [official website], expressed concern [press release, Spanish] Tuesday over the violence in prisons in South America after the death of at least three prisoners in Uruguay, two in Argentina, two in Venezuela and one in Chile over the last few days. The OHCHR sets out guidelines for the treatment of prisoners through General Comment No. 9 [text], issued in 1982, which Incalcaterra notes should have been followed more closely in order to prevent the inhumane treatment that is believed to be linked to the violence. There is also an Optional Protocol to the Convention against Torture [text] that sets up preventative measures that none of the countries at issue here have taken steps to implement. Incalcaterra said in a statement:
These events reflect an alarming pattern of prison violence in the region, which is a direct consequence of—or is aggravated by—among others, poor conditions of detention, including chronic prison overcrowding, the lack of access to basic services such as adequate floor space, potable water, food, health care, and lack of basic sanitary and hygienic standards.
These types of conditions are addressed in both the OHCHR General Comment as well as the Optional Protocol.

The violence has been linked to overcrowding and poor hygienic conditions [LAT report] in many South American prisons. A report [text, PDF] written by he Washington Office on Latin America and the Transnational Institute [official website] two years ago credits the overcrowding to stricter drug laws throughout South America.




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Lawyer for 9/11 suspect challenges government review of legal correspondence
Michael Haggerson on February 10, 2012 11:28 AM ET

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[JURIST] James Connell, defense lawyer for suspected 9/11 [JURIST backgrounder] conspirator Ali Abdul Aziz Ali, filed suit in the US District Court for the District of Columbia [official website] on Wednesday challenging an order for military officials to read all legal correspondence between the lawyers of the suspected 9/11 conspirators and their clients. Rear Adm. David Woods [official profile] has testified [JURIST report] that the policy 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, but simply look at mail to make sure each page is properly marked as privileged. However, Connell contends that the policy is unconstitutional [AP report] because it violates attorney-client privilege and represents illegal monitoring of a US citizen.

On Saturday Pentagon officials denied a request for an extension [JURIST report] of the filing deadline for pre-trial motions for the alleged 9/11 conspirators. The prisoners' lawyers stated that they needed the extension because of delays in getting security clearance and new restrictions on legal mail between the attorneys and their clients. Lawyers for Guantanamo [JURIST backgrounder] detainees complained [JURIST report] to the Deputy Secretary of Defense for Detainee Affairs in November that the Joint Task Force Guantanamo [official website] was making it impossible to do their jobs and was violating attorney-client privilege by seizing, opening, interpreting, reading and reviewing attorney-client privileged communications. Ali Abdul Aziz Ali and four other suspects were charged [JURIST report] in May with conspiracy, murder in violation of the law of war, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, destruction of property in violation of the law of war, hijacking aircraft, and terrorism for their alleged roles in connection with the 9/11 attacks.




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Senate panel approves bill to televise Supreme Court proceedings
Sung Un Kim on February 10, 2012 11:06 AM ET

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[JURIST] The Senate Judiciary Committee [official website] on Thursday voted 11-7 [CSPAN video] in favor of a bill [S 1945 text, PDF] that would allow televising of US Supreme Court [official website] proceedings. Currently, only few citizens can hear the proceedings in person, and audio recordings are released after the proceedings are over. However, the bill would not make televising proceedings mandatory: "The Supreme Court shall permit television coverage of all open sessions of the Court unless the Court decides, by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of 1 or more of the parties before the Court." A similar bill, The Cameras in the Courtroom Act of 2011 [HR 3572, PDF] is still pending in the House Judiciary Committee [official website].

This bill, when first proposed, faced numerous criticism as well as support and initiated a longstanding debate [JURIST report; hearing materials] among judiciary and congressional officials. Supporters argued that the bill would create a more transparent government and secure citizens' right to access governmental materials. On the other spectrum, there was concern that parts of the proceedings could be taken out of context and be abused creating misrepresentations of the court.




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UN welcomes new Libya electoral law
Sung Un Kim on February 10, 2012 10:18 AM ET

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[JURIST] The UN Support Mission in Libya (UNSMIL) [official website] on Thursday welcomed the new electoral law [press release, PDF] adopted by the National Transitional Council (NTC) [official website, in Arabic; JURIST news archive]. The draft of the electoral law was finalized on Wednesday after the earlier version [text, PDF; JURIST report] was revised to address criticisms of the public. The new law sets out procedures for the upcoming election to choose a national assembly. After elected, its responsibility will be to draft a new constitution for the country. The finalized law provides that 20 percent of the 200 seats (40 seats) will be reserved for women, double of what was proposed in the earlier version. The UNSMIL stressed the importance of the new democratic development in Libya:
The first free election for over four decades will provide an opportunity for Libyans to exercise their democratic rights to participate in a process which will shape the future of their country. UNSMIL remains committed, as mandated by the UN Security Council, to assist and support Libyan national efforts to undertake political dialogue, promote national reconciliation and embark upon the electoral process.
Local council members stated that they still have to address the issue of education, health care, and reconstruction.

This finalization and adoption of the new electoral law is a significant step for Libya in establishing a democratic system after the end of the Muammar Gaddafi [BBC backgrounder; JURIST news archive] regime and the Libyan conflict [JURIST backgrounder]. Last week, the trial against Gaddafi allies was postponed [JURIST report]. The defense's pleading stated that the trial must be transferred to the civil court because the military court lacked the authority to rule on the issue. The trial will resume on February 15. Last month, Libya was criticized for the allegations of torture and human rights violations [JURIST report]. Although the NTC expressed its commitment to human rights and legal reformation, UN Security Council [official website] was still concerned due to the lack of NTC's control over the revolutionary brigades.




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Iraq conducted 65 executions since start of 2012: HRW
Jerry Votava on February 9, 2012 1:35 PM ET

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[JURIST] Iraq [JURIST news archive] has executed 65 people [press release] so far this year, Human Rights Watch (HRW) [advocacy website] reported Thursday. HRW said those executed were convicted of various crimes and counted a total of 51 in January and 14 in February. HRW also called for a moratorium on all future executions, and called for "an overhaul of [Iraq's] flawed criminal justice system." In its statement, HRW also said:
Human Rights Watch is particularly concerned that Iraqi courts admit as evidence confessions obtained under coercion. The government should disclose the identities, locations, and status of all prisoners on death row, the crimes for which they have been convicted, court records for their being charged, tried, and sentenced, and details of any impending executions.
HRW further commented that "many defendants are unable to pursue a meaningful defense or to challenge evidence against them, and lengthy pretrial detention without judicial review is common."

In January UN High Commissioner for Human Rights Navi Pillay [official website] condemned [JURIST report] Iraq's execution of 34 individuals, including two women. All 34 of those executions occurred on a single day for crimes described as terrorism-related offenses. In June HRW expressed concern [JURIST report] about reports that Iraqi police forces had been beating and illegally detaining protesters. Last February, HRW accused military officials [JURIST report] overseen by Iraqi Prime Minister Nuri al-Maliki [BBC profile; JURIST news archive] of running a secret jail in Iraq that is not subject to inspection by international groups and torturing suspects [JURIST news archive] in another detention center.




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Supreme Court blocks Ohio execution
Brandon Gatto on February 9, 2012 1:33 PM ET

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[JURIST] The US Supreme Court [official website] on Wednesday denied [text, PDF] Ohio's request to put a condemned killer to death, effectively putting the state's executions on hold. Without comment, the court refused [AP report] to allow Ohio to execute Charles Lorraine, a 45-year-old man who was convicted in 1986 of killing an elderly couple. Though Ohio Governor John Kasich [official website] rejected Lorraine's plea for mercy, the execution has been consistently delayed by federal courts over growing concerns that the state deviates too often from its lethal injection rules. Despite Ohio Attorney General Mike DeWine's argument [text, PDF] that the state's minor deviations in death penalty policy do not make the process unconstitutional, the Supreme Court refused to reverse an earlier decision [text, PDF] made by the US District Court for the Southern District of Ohio [official website] and upheld [text, PDF] last month by the US Court of Appeals for the Sixth Circuit [official website]. Said the Sixth Circuit in affirming the opinion:
We agree with the district court that the State should do what it agreed to do: in other words it should adhere to the execution protocol it adopted. As the district court found, whether slight or significant deviations from the protocol occur, the State's ongoing conduct requires the federal courts to monitor every execution on an ad hoc basis, because the State cannot be trusted to fulfill its otherwise lawful duty to execute inmates sentenced to death.
The deviations in death penalty policy criticized by the district court include switching the official whose job it is to announce the start and finish times of the lethal injection and failing to properly document that the inmate's medical chart was reviewed.

Ohio's death penalty procedures have received consistent attention over the past few years. Last November, Ohio Supreme Court Chief Justice Maureen O'Connor [official website] instructed the state's death panel review committee [JURIST report] that its purpose was to provide "guidance on the current laws on the subject, the practices in other jurisdictions, the date, the costs, and many other aspects associated with the death penalty." The Chief Justice announced the formation of the committee [JURIST report] last September, declaring that it would be responsible for ensuring that the death penalty law is "administered in the most fair, efficient, and judicious manner possible." In March 2010, the Supreme Court refused to stay the execution of an Ohio inmate [JURIST report] who challenged the state's single-drug lethal injection protocol, which was changed [JURIST report] in November 2009 from the previously used three-drug method. Ohio conducted its first execution [JURIST report] using the new method in December 2009. The change in protocol came after the state reviewed its lethal injection practices [JURIST report] following a failed execution in September 2009.




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Federal, state AGs reach agreement in foreclosure investigation
Jamie Reese on February 9, 2012 1:11 PM ET

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[JURIST] US Attorney General Eric Holder, along with Department of Housing and Urban Development Secretary Shaun Donovan [official websites] and 49 state attorneys general announced [press release; official website] Thursday that a $25 billion agreement was reached with the nation's five largest mortgage servicers to address mortgage loan servicing and foreclosure abuses. This agreement is the largest joint federal-state settlement ever obtained and includes mortgage servicers Bank of America Corporation, JPMorgan Chase & Co., Wells Fargo & Company, Citigroup Inc. and Ally Financial Inc. (formerly GMAC) [corporate websites]. Holder announced:
The joint federal-state agreement requires servicers to implement comprehensive new mortgage loan servicing standards and to commit $25 billion to resolve violations of state and federal law, which include the use of "robo-signed" affidavits in foreclosure proceedings; deceptive practices in the offering of loan modifications; failures to offer non-foreclosure alternatives before foreclosing on the borrowers with federally insured mortgages; and filing improper documentation in federal bankruptcy court.
The agreement will be filed as a consent judgment in the US District Court for the District of Columbia [official website] with servicers required to fulfill the obligations within three years. The agreement does not prevent civil suits by individual homeowners or criminal charges pursued by federal or state authorities. Oklahoma was the only state not to participate in the agreement.

The investigation began [JURIST report] in October 2010 with the forming of a bipartisan group called the Mortgage Foreclosure Multistate Group (MFMG). In June 2010, Countrywide Home Loans, Inc., a subsidiary of Bank of America, reached a $108 million settlement agreement [JURIST report] with the Federal Trade Commission (FTC) [official website] to resolve charges that the subsidiary collected excessive fees from homeowners facing foreclosure. In September 2010, a federal judge refused to dismiss a suit [JURIST report] against American International Group (AIG) [corporate website], and in August, a federal judge rejected a $75 million settlement [JURIST report] between Citigroup and the US Securities Exchange Commission (SEC) [official website] because the two companies misled investors. In 2009, the US Senate [official website] rejected a bill [S 896 materials] that would have aided homeowners in foreclosure [JURIST report] by allowing bankruptcy judges to modify mortgages from lenders that had not already offered better terms to their borrowers.




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Consumer watchdog files suit to block Google privacy changes
Jerry Votava on February 9, 2012 1:02 PM ET

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[JURIST] The Electronic Privacy Information Center (EPIC) [advocacy website], a consumer privacy group, filed a lawsuit [complaint, PDF; press release] Wednesday in the US District Court for the District of Columbia [official website] asking that the Federal Trade Commission (FTC) [official website] block Google's [corporate website] proposed privacy policy changes [text]. EPIC alleged that the changes to the privacy policy are in violation of a settlement [JURIST report] reached by the FTC and Google in October over a breach of consumer privacy rights and misleading consumers during the launch of Google Buzz, a social networking service. EPIC claims that Google violated the settlement:
by misrepresenting the extent to which it maintains and protects the privacy and confidentiality of covered information[,] ... by failing to obtain affirmative consent from users prior to sharing their information with third parties [and] ... by failing to comply with the requirements of a comprehensive privacy program.
Epic is primarily concerned with Google's plans to share user data across its services without affirmative user consent. The new privacy policy is set to take effect March 1.

Last week, the EU's data protection authorities wrote a letter to Google asking it to delay implementation [JURIST report] of its new privacy policy. Google responded earlier this month to concerns [JURIST report] of US Congressmen about the new policy as well. It responded to 11 questions posed in a letter sent by the Congressmen [JURIST report] in January. Some topics of concern addressed by Google included assurance that no new types of data will be collected, reasons supporting data-sharing between Google products and an explanation of how data can be deleted by users once their accounts are closed. It also assured that it will comply with conditions of its settlement with the FTC.




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Haiti rule of law has made significant progress: UN expert
Rebecca DiLeonardo on February 9, 2012 1:01 PM ET

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[JURIST] The implementation of the rule of law in Haiti is making significant progress [press release], UN Independent Expert Michel Forst said Wednesday. Forst focused on improvements such as the establishment of judicial offices, the adoption of the International Covenant on Economic, Social and Cultural Rights [text, PDF] and the recent conviction of eight police officers [JURIST report] in a post-earthquake shooting. He said he was disappointed in the recent decision by Haiti's Investigative Magistrate Carves Jean that former president Jean-Claude Duvalier [BBC backgrounder; JURIST news archive] will not stand trial [JURIST report] for crimes against humanity, including torture, false imprisonment, rape and murder during his reign between 1971 and 1986. Forst stressed that the government in Haiti must continue to prioritize the Rule of Law:
President Martelly has made Rule of Law one of his top priorities for his mandate, but the implementation of the rule of law requires a sound political action to implement the technical decisions for which diagnoses were made long ago. To rule also means to send political signals. The population needs to see that the Rule of Law prevails in Haiti.
Forst also indicated that Haiti must work to reduce the amount of time individuals spend in prison while awaiting trial. He urged Haiti to consider this and other human rights issues in preparation for its participation in the upcoming UN Council for Human Rights in Geneva.

Haiti has been urged numerous times by different organizations to improve its human rights records. Last month the Investigative Magistrate dismissed the charges against Duvalier, reasoning that there are not sufficient legal grounds and that the statute of limitations has expired. In September, AI urged [JURIST report] the Haitian government to prosecute Duvalier after its release of a report [text, 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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Maldives issues arrest warrant for ex-president
Rebecca DiLeonardo on February 9, 2012 12:17 PM ET

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[JURIST] Former Maldives president Mohamed Nasheed said Thursday he would remain in the country [BBC video] and try to regain his office after reports indicated that a warrant has been issued for his arrest. The specific charges are unclear [BBC report], but Nasheed maintains that the warrant is politically motivated. Nasheed, who resigned on Tuesday [press release; JURIST report], has said that he was forced out of office in a coup. Nasheed told reporters Thursday that he would remain for the good of the country: "They are going to arrest me [but] I am certain that you cannot suppress anything by brute force. ... I am not leaving the country for my own safety. How can I do that? This country will go to the dogs if I leave." Nasheed's vice president, Mohammed Waheed Hassan [official profile], took over the presidency Tuesday afternoon. Hassan issued a statement [text] Thursday renewing "his commitment to restore peace and order in the country." Nasheed has accused [BBC report] Hassan, who had called for his removal [CSM report] while serving as vice president, of participation in the coup.

The Maldives has faced ongoing unrest since the military in January arrested the chief justice of the nation's criminal court, Judge Abdulla Mohamed, after he released a detained opposition leader. Last month, the UN called for Mohamed's release [JURIST report] days after the Maldives Minister of Foreign Affairs [official website] asked the UN to help them resolve [JURIST reports] what they called a judicial system failure. The same week, a group of Maldives lawyers submitted [JURIST report] to the International Criminal Court (ICC) [official website] the case, calling Mohamed's continued detention a violation of the International Convention on the Protection of all Persons against Enforced Disappearance [text]. In the country's first democratic elections in 2008, Nasheed defeated longtime political opponent Maumoon Abdul Gayoon [BBC profile], ending his 30-year rule. During Thursday's street protests, some worried that the violence may have been a coup attempt by Gayoon, but the government has denied such claims [Reuters report].




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Spain high court convicts judge Garzon in wire-tapping case
Maureen Cosgrove on February 9, 2012 12:00 PM ET

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[JURIST] The Spanish Supreme Court [official website, in Spanish] on Thursday convicted [press release, in Spanish] Spanish Judge Baltasar Garzon [BBC profile; JURIST news archive] of ordering illegal wiretaps in jailhouses, after a trial lasting less than one month [JURIST report]. 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. This investigation, now known as "el caso Gurtel" [El Pais report, in Spanish], was commenced by Garzon in 2009, with the wiretap order issued in February of that year. He based his order to wiretap the jailhouse on his belief that it would yield incriminating evidence as the lawyers may be acting as liaisons with others suspected of involvement in this network. The court suspended Garzon from practicing law for 11 years.

A second private prosecution against Garzon related to abuse of power charges [JURIST report] began in January and is ongoing. In that case, Garzon is charged with politically motivated corruption in his 2008 investigation of crimes committed under the Franco dictatorship in violation of the 1977 Amnesty Law, which affords amnesty for Franco-era crimes. During the investigation, Garzon ordered [JURIST report] 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. 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. 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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UN report finds rise in criminal violence harmful to Caribbean economies
Jennie Ryan on February 9, 2012 11:27 AM ET

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[JURIST] A rising crime rate in Caribbean nations is one of the main challenges threatening those nations' economies, the UN Development Programme (UNDP) [official website] reported [text, PDF] Wednesday. According to the Caribbean Human Development Report 2012, the "region is home to 8.5 percent of the world's population, yet it concentrates some 27 percent of the world's homicides. Violence and crime are therefore perceived by a majority of Latin American and Caribbean citizens as a top pressing challenge." Gang-related violence [press release] specifically plays a large role in destabilizing economies throughout the Caribbean. The report estimates that the cost of gang-related crime is between 2.8 and 4 percent of gross domestic product (GDP) in the region. The cost of policing is a factor, but so too is the loss of income by incarcerated youths and the loss of potential tourism revenues. The report indicates that "[h]igh rates of violent crime can be turned around by achieving a better balance between legitimate law enforcement and preventive measures, with a stronger focus on prevention."

The UN has expressed similar concern about rising homicide rates in the Central American region of the world. In October of last year, a UN Office on Drugs and Crime (UNODC) [official website] report [JURIST report] found that homicide rates in Central American countries, including El Salvador and Honduras, are reaching a "crisis point." The report found that young men in Central and Southern America, Central and Southern Africa and the Caribbean are at the greatest risk of intentional homicide. In June 2010, the UNODC released a report [JURIST report] detailing the globalization of organized crime and its threat to international security. The report specifically addressed the global economic impact of human and drug trafficking, sale of illicit firearms, piracy, identity theft and the illegal exploitation of natural resources. The report echoed warnings issued by the UNODC [JURIST report] in May 2010, stating that the inadequacies of the current international crime control system are allowing organized crime organizations to gain economic strength.




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Russia lawmakers approve stricter sex offender law
Maureen Cosgrove on February 9, 2012 11:00 AM ET

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[JURIST] The Russian State Duma [official website, in Russian] on Tuesday approved [press release, in Russian] legislation imposing stricter penalties for individuals convicted of sex offenses against minors. The legislation, initiated by Russian President Dmitry Medvedev [official website, in Russian; JURIST news archive], prohibits probation and sentence deferrals for perpetrators and provides that repeat offenders could face up to life in prison. Offenders are also permitted to voluntarily submit to chemical castration, a reversible process consisting of a series of chemical injections that hinder the effects of the male hormone testosterone. Offenders who are close relatives, teachers, or caregivers of child victims or employees of childcare institutions may be subject to more severe penalties. The legislation was passed by 354 of 450 voting members.

Medvedev first proposed that the chemical castration procedure be voluntary [JURIST report] in July, but the United Russia [party website, in Russian] party, which holds a majority in parliament had wanted the procedure to be mandatory. In an earlier version of the bill, punishment for sexual crimes committed against children would range from 20 years to life imprisonment [Library of Congress report]. Several countries including South Korea [JURIST report], Canada, Britain, France, Germany, Denmark, Israel, Norway, Sweden, Poland and some US states use the chemical castration process. In his annual address to Parliament [transcript text] last November, Medvedev emphasized the need for measures that protect children, including harsher penalties for those who commit sexual crimes against children.




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US, Arab states not bound by grant of immunity to Yemen president: HRW
Jennie Ryan on February 9, 2012 10:55 AM ET

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[JURIST] US and Arab Gulf states are not legally bound by a decision to grant immunity to Yemeni President Ali Abdullah Saleh [official website, in Arabic; JURIST news archive] and should refrain from doing so, Human Rights Watch (HRW) [advocacy website] said in a report [text] released Wednesday. Last month, the Yemeni parliament approved a bill granting complete immunity [JURIST report] to Saleh for crimes committed during his regime in exchange for him stepping down. In the report, HRW recommends [press release] that all countries "impose an asset freeze and travel ban on President Saleh" and other top Yemeni official implicated in the alleged human rights violations. HRW argues that countries should take such actions in order to "[p]ublicly express opposition to any grant of immunity to Yemeni officials who may have been responsible for serious violations of international human rights or humanitarian law [and to m]ake clear that such immunity has no effect in jurisdictions outside of Yemen." Saleh is currently in the US receiving medical treatment. He is expected to return to Yemen sometime before the countries presidential election scheduled for February 21.

Criticism of Yemen's handling of the situation with Saleh has been ongoing since the country first announced it would give him complete immunity. Last month Yemen's newly appointed Council of Ministers approved a draft law [JURIST report] to grant Saleh immunity from any charges against him for alleged human rights violations from his time in office. A couple of weeks later, Yemeni officials amended that law [JURIST report] to give Saleh's associates only limited immunity. 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 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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Federal judge allows 'secret evidence' in al Qaeda trial
Julia Zebley on February 9, 2012 8:47 AM ET

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[JURIST] A judge for the US District Court for the Western District of Kentucky [official website] on Wednesday allowed "secret evidence" to be used against an Iraqi refugee for terrorism charges, finding probable cause that he is "an agent of a foreign power." Mohanad Shareef Hammadi is charged with attempting to provide material support to terrorists and terrorist organizations and conspiracy to transfer weapons to terrorist organizations, specifically al Qaeda [JURIST news archive]. Judge Thomas Russell, after assessing all of the prosecution's files, ruled that Hammadi's attorneys may not review warrants and information gained by surveillance, in addition to withholding that information from the actual trial. The prosecution obtained the information under the Foreign Intelligence Surveillance Act (FISA) [text], a law used primarily to collect intelligence on foreign agents and foreign terrorism suspects. Hammadi's attorney is pursuing a plea agreement [AP report]. Hammadi is set to go to trial on July 30.

The Senate Armed Services Committee [official website] on Wednesday finally agreed on a controversial detainee provision of the National Defense Authorization Act for 2012 [SB 1867, PDF] in November that governs the handling and prosecuting of suspected al Qaeda [GlobalSecurity backgrounder] detainees. The provision allows the military to have complete custody and control over terror suspects and grants authority to Attorney General Eric Holder [official website] over whether suspects should be tried in military or civilian courts. Issues of "secret evidence" have been broached in other courts as well. Last year, the UK Supreme Court [official website] ruled [JURIST report] that secret service organizations cannot withhold evidence from opposing parties nor conduct closed trials. The appellants, secret service organizations including MI5 [official website], appealing a May 2010 ruling [JURIST report], requested the creation of a "closed material procedure," saying the disclosure of their evidence to the appellees, former Guantanamo detainees, would be contrary to the public interest. The court rejected this idea, citing the public interest immunity (PII) doctrine as more than suitable for classified information as evidence, and that it was not in the judiciary's power to allow or enforce a new doctrine.




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Washington House approves same-sex marriage bill
Julia Zebley on February 9, 2012 7:43 AM ET

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[JURIST] The Washington state House of Representatives [official website] voted 53-43 Wednesday to approve a bill [HB 6239] to legalize same-sex marriage [JURIST backgrounder]. Washington currently grants expanded domestic partnership rights [JURIST report] rather than full marriage or civil union rights to same-sex couples. The Senate passed the bill [JURIST report] last week, and Governor Christine Gregoire [official website] is expected to sign it into law next week. Gregoire has been a major supporter of gay rights in her term as governor and originally proposed a marriage bill in the state Congress. In a statement, she praised the bill's passage:
This is truly a historic day in Washington state, and one where I couldn't be more proud. With today's vote, we tell the nation that Washington state will no longer deny our citizens the opportunity to marry the person they love. We tell every child of same-sex couples that their family is every bit as equal and important as all other families in our state. And we take a major step toward completing a long and important journey to end discrimination based on sexual orientation.
Opponents of same-sex marriage have promised to challenge the imminent law with a referendum, similar to Proposition 8 [text, PDF; JURIST news archive] in California. The US Court of Appeals for the Ninth Circuit [official website] ruled [JURIST report] earlier this week that Proposition 8 is unconstitutional. If a ballot initiative in Washington is not achieved, same-sex marriages could begin as early as June.

Washington is poised to become the eighth jurisdiction in the US to legalize same-sex marriage [US map]. In a similar situation, New Jersey is considering legalizing same-sex marriage soon, although it currently has a civil union system in place. In November, a lawsuit [JURIST report] was allowed to continue in New Jersey, which seeks declaratory and injunctive relief against the state civil union law as a contravention of both the Fourteenth Amendment [Cornell LII backgrounder] and the New Jersey State Constitution. Same-sex marriage has been legalized in New York, Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and the District of Columbia [JURIST reports]. The case for same-sex marriage was recently made by JURIST contributor Kimberly Bennett in Judicial Activism and the Recognition of Same-Sex Marriage [JURIST op-ed].




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Canada security service authorized to use information obtained through torture
Rebecca DiLeonardo on February 8, 2012 1:21 PM ET

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[JURIST] The Canadian Security Intelligence Service (CSIS) [official website] is authorized to use and pass on information obtained through torture when Canadian lives are at stake, Public Safety Minister Vic Toews [official website] said Tuesday. The statements come in response to a controversial 2010 directive authorizing the use of such information that was obtained earlier this week [Reuters report] by a Canadian news agency through freedom of information laws. The directive allows the CSIS to use information which may have been obtained through torture under extreme circumstances. This order is an expansion of a 2009 ministerial order, which expressly forbids the use of information obtained through torture. The latest directive carves out a narrow exception to the 2009 order, which Toews argued was necessary to protect the lives of Canadian citizens. The directive was criticized [BBC report] by representatives from the Liberal Party and the New Democratic Party [official websites], who argued it may not be legal.

Torture has been at the center of controversy in Canada recently. In January, the Canadian government deported Rwandan war crimes suspect Leon Mugesera [JURIST report], despite claims that he would face torture and possible death [Globe and Mail report] if removed to Rwanda. The Quebec Superior Court [official website] determined that they did not have jurisdiction to rule on immigration cases. In November 2009, a former senior Canadian diplomat, during testimony before the House of Commons Special Committee on the Canadian Mission in Afghanistan [official website], alleged that the Canadian military was complicit in the torture of Afghans [JURIST report] by their own government. Amnesty International Canada and the British Columbia Civil Liberties Association [advocacy websites] filed complaints [JURIST report] in 2007 against the Canadian Forces Provost Marshal [official website], alleging complicity in torture by Canadian personnel serving in Afghanistan. Amnesty accused Canada of violating the Charter of Rights and Freedoms [text] by turning Afghan detainees over to Afghan authorities without any protection against later cruel and unusual punishment.




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UN rights chief calls for protection of Syria civilians
Max Slater on February 8, 2012 1:13 PM ET

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[JURIST] UN High Commissioner for Human Rights Navi Pillay [official website] on Wednesday urged the international community [press release] to take action to protect Syrian civilians. Pillay argued that the failure of the UN Security Council [official website] to agree on collective action against Syria has encouraged the Syrian government to attack and kill civilians in order to quash dissent. Pillay declared that the Syrian government's violence against its own people constitutes a "serious international crime" and called on world leaders to honor a 2005 agreement to protect basic human rights:
At their 2005 Summit, World leaders unanimously agreed that each individual State has the responsibility to protect its population from crimes against humanity and other international crimes ... They also agreed that when a State is manifestly failing to protect its population from serious international crimes, the international community as a whole has the responsibility to step in by taking protective action in a collective, timely and decisive manner ... The virtual carte blanche now granted to the Syrian Government betrays the spirit and the word of this unanimous decision. It is depriving the population of the protection they so urgently need.
The statement comes in response to the recent increase in attacks on civilians by the Syrian army, especially in the city of Homs.

Human rights groups have sharply criticized the Syrian government for using violence against its own people. Earlier this week, the UN Children's Fund (UNICEF) [official website] claimed that eleven months of violence in Syria has led to the deaths of hundreds of children [JURIST report]. Last week, Human Rights Watch (HRW) [advocacy website] accused the Syrian army of torturing children [JURIST report]. In January, UN Secretary-General Ban Ki-Moon [official profile] demanded [JURIST report] that Syrian President Bashar al-Assad [BBC backgrounder] end violence against Syrian civilians. In December, the UN Office of the High Commissioner for Human Rights (OHCHR) [official website] urged the UN Security Council [JURIST report] to refer Syrian government officials to the International Criminal Court (ICC) [official website]. In November, HRW declared that Syrian forces were committing crimes against humanity [JURIST report], including torture and unlawful killings of anti-government protesters. JURIST contributing editor Chibli Mallat argues that a UN Security Council resolution would not have affected meaningful change [JURIST op-ed].




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Uganda reintroduces legislation criminalizing homosexuality
Rebecca DiLeonardo on February 8, 2012 12:15 PM ET

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[JURIST] The Parliament of Uganda [official website] on Tuesday reintroduced legislation that would criminalize certain homosexual activities. Amnesty International (AI) [advocacy website] has criticized the bill [press release] as "a grave assault on human rights." The proposed legislation is a new version of another bill [Reuters report] first introduced in October 2009. The original bill [text, PDF] contained provisions requiring the death penalty for "repeat offenders." It is not clear whether the new bill has removed some of these provisions, but AI Deputy Africa Programme Director Michelle Kagari urged that the bill is dangerous either way:
The bill introduces draconian provisions on top of Uganda's existing prohibition on consensual same-sex relations, which already violates international norms. It aims to criminalize the "promotion" of homosexuality, compels HIV testing in some circumstances, and imposes life sentences for entering into a same-sex marriage. It would also be an offence for a person who is aware of any violations of the bill's wide-ranging provisions not to report them to the authorities within 24 hours...This deplorable bill would not only violate the rights of Ugandans to life, to non-discrimination, to equality before the law, and to privacy, but would sanction hatred, violence and the persecution of a group of people based on whom they love alone.
AI expressed concern that the revived bill may not need committee review before being passed into law, which could expedite its passage. The original bill was set aside last May, after receiving widespread criticism from the international community.

Uganda faces an ongoing struggle with anti-gay sentiment in the country. In November the Ugandan High Court [official website] sentenced a man to 30 years in prison [JURIST report] for beating to death prominent gay rights activist David Kato. In January 2011 the Ugandan High Court issued a permanent injunction [JURIST report] and awarded damages to three plaintiffs who were among 100 people alleged to be homosexuals by the Ugandan tabloid newspaper, The Rolling Stone. In January 2010 UN High Commissioner for Human Rights Navi Pillay [official profile] criticized the original anti-gay legislation [JURIST report], saying that it could harm Uganda's reputation internationally. In February 2010, US President Barack Obama and Secretary of State Hillary Clinton [official website] publicly denounced the proposed legislation [JURIST report]. Uganda currently criminalizes homosexual behavior [BBC report] with up to 14 years in prison.




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Pakistan PM appeals high court summons in contempt case
Jennie Ryan on February 8, 2012 11:34 AM ET

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[JURIST] Pakistani Prime Minister Yousuf Raza Gilani [BBC profile; JURIST news archive] on Wednesday appealed a summons issued by the Supreme Court of Pakistan [official website] demanding he appear [JURIST report] in a hearing against him for contempt. The contempt charge stems from Gilani's refusal to purse corruption charges against Pakistan President Asif Ali Zardari [profile]. Gilani has maintained that he would not pursue charges against President Zardari because the president has immunity as the head of state [Al Jazeera 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. If he is convicted of contempt Gilani could lose his public office and be sent to prison for up to six months. This is only the second time that contempt charges have been filed against a sitting prime minister in Pakistan's history.

These proceedings reflect an ongoing struggle between the government and the courts in Pakistan. In December, 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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UN rights expert urges Panama to end clashes with indigenous peoples
Katherine Getty on February 8, 2012 11:16 AM ET

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[JURIST] The UN Special Rapporteur on the rights of indigenous peoples James Anaya [official website] urged the Panamanian government on Tuesday to open a dialogue [press release, in Spanish] with the country's indigenous peoples in an effort to alleviate tension and reduce violence. The request comes after one indigenous group occupied portions of the Pan-American Highway in protest of mining and drilling activities taking place on their lands. As a result of these protests and clashes with the police, one person was killed and many others were detained or injured. Anaya called upon the government to insure that people involved in such protests are protected and asked for an investigation into the death of the protester. Other indigenous groups have announced plans to protest in a show of solidarity and to display their displeasure at the lack of legalization of their lands.

The rights of indigenous peoples have become a pressing issue in recent years. In December 2010, US President Barack Obama announced that the US will support [JURIST report] the UN Declaration on the Rights of Indigenous People [text]. The declaration, adopted [JURIST report] in 2007, is a non-binding treaty outlining the global human rights of approximately 370 million indigenous people and banning discrimination against them. The US was one of four member states that originally opposed adopting the treaty, citing concerns that its text conflicted with their countries' own laws, among other contentions. The US is the last member state of those in opposition to sign the declaration. Earlier in 2010, Canada endorsed [JURIST report] the declaration citing encouragement from community leaders and other countries' experiences in reversing its position on the document. In August 2010, UN Secretary-General Ban Ki-moon called on governments to work to improve the human rights conditions [JURIST report] of the world's indigenous peoples.




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Vatican prosecutor says bishops must uphold laws to protect victims of sexual abuse
Jennie Ryan on February 8, 2012 11:08 AM ET

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[JURIST] The Vatican [official website] sex crimes prosecutor warned bishops on Wednesday that they must follow rules in place for protecting victims of sexual abuse in the church or they risk being sanctioned. Monsignor Charles Scicluna, the church appointed prosecutor in the ongoing clergy sex abuse [JURIST news archive] scandals, issued his warning at a symposium of bishops, the purpose of which was to begin formulating guidelines to keep children safe. In February 2010, the Vatican unveiled church procedures [JURIST report] for dealing with sexual abuse cases, titled the "Guide to Understanding Basic CDF Procedures concerning Sexual Abuse Allegations", which set up a multi-tiered system of enforcement, including local bishops and the Pope himself. Church law provides for sanctioning those who cover-up or ignore abuse as negligent or malicious in performing their job duties.

Clergy abuse has become a contentious legal issue in recent years, as the Vatican has come under intense scrutiny related to allegations of sexual abuse of children by local church officials. In November a UK court ruled [JURIST report] that Catholic priests qualify as employees, meaning that the Catholic church could be held liable for sexual abuse by clergy members. In September Amnesty International [advocacy website] claimed [JURIST report] that clergy members' abuse of Irish children amounted to torture. The report, titled In Plain Sight [text, PDF] called special attention to "people in positions of power" who "ignore their responsibility to act." Also in September, the Center for Constitutional Rights (CCR) [advocacy website] filed a complaint [JURIST report] with the International Criminal Court (ICC) [official website] against Vatican officials, including Pope Benedict XVI, for widespread sexual abuse and subsequent concealment of thousands of incidents. Since 2007, the Church has settled over 500 cases [JURIST news archive] of clergy abuse in the U.S. alone, totaling more than $900 million.




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South Carolina sues federal government over blocked voter ID law
Katherine Getty on February 8, 2012 10:17 AM ET

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[JURIST] South Carolina Attorney General Alan Wilson [official website] filed suit [complaint, PDF] Tuesday against the US Department of Justice (DOJ) [official website] over its ruling that barred South Carolina from enforcing its voter identification law [R54 materials]. The DOJ rejected the law [JURIST report] in December on the grounds that it was discriminatory. It has authority to do so under the Voting Rights Act [Cornell LII backgrounder], which allows it to screen new voter laws in states with a history of discriminatory voter practices. In the filing, the attorney general alleges that the photo identification requirement will not disenfranchise voters.
South Carolina's photo identification law only places upon the voter an affirmative responsibility to obtain an approved photo identification card and bring it to the polls. ... Because these photo identification requirements are not a bar to voting but a temporary inconvenience no greater than the inconvenience inherent in voting itself, they do not deny or abridge the right to vote on account of race, color, or membership in a language minority.
The complaint cited a 2008 Supreme Court decision which upheld a similar Indiana law [JURIST report]. The American Civil Liberties Union [advocacy website] has praised [press release] the DOJ for its actions in blocking the law. The advocacy group alleges that the new law would have prevented thousands of eligible voters from exercising their right.

There are now 30 US states that require voters to present some form of ID at the polls, including 14 states that require photo ID, but the issue remains controversial. In Wisconsin, several civil rights groups filed a lawsuit [JURIST report] in December challenging the new voter identification law [2011 Wisconsin Act 23]. In June 2011, Missouri Governor Jay Nixon [official website] vetoed [JURIST report] a law requiring persons to present photo identification at voting booth. In March 2011, the Georgia Supreme Court [official website] upheld [JURIST report] a law requiring voters to present one of six government-issued photo identifications in order to vote. In contrast, a three-judge panel for the US Court of Appeals for the Ninth Circuit [official website] struck down [JURIST report] a portion of Arizona law requiring proof of citizenship for voter registration in October 2010. In October 2006, the Supreme Court ruled that Arizona could enforce its voter ID law [JURIST report], which requires voters to show government-issued voter ID cards [JURIST news archive] at the polls.




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Berlusconi facing new trial on wiretap charges
Katherine Getty on February 8, 2012 9:46 AM ET

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[JURIST] A judge in Milan ruled Tuesday that former Italian prime minister Silvio Berlusconi [BBC profile; JURIST news archives] will stand trial for publicly releasing a secret wiretap in 2005. The prosecution alleges that Berlusconi published the transcript of a tapped phone conversation [BBC report] in Il Giornale [media website, in Italian], a national newspaper owned by his brother. The conversation in question took place between Berlusconi's biggest political rival at the time, Piero Fassino [official website, in Italian], and the head of Unipol, an insurance company that has since been restructured. The publication broke secrecy rules, as the conversation should have remained private due to the ongoing investigation into possible inappropriate interference in Unipol's attempt to take over Italian banking firm Banca Nazionale del Lavoro (BNL) [official website, in Italian]. The publication was widely viewed as an attempt by Berlusconi to damage Fassino and other center-left opponents. During the hearing Tuesday Berlusconi told the court that he had not listened to the tape at the time, nor had he ordered its release. This will be Berlusconi's fourth pending trial, as he is already facing charges of embezzlement, tax fraud and paying for sex with an underage prostitute [JURIST reports]. The wiretap trial is set to begin March 15.

Berlusconi, who resigned as prime minister in November, has been a defendant in nearly 50 cases. In July an Italian appeals court ordered Fininvest [corporate website], a holding company owned by Berlusconi, to pay €560 million in damages and fees to Compagnie Industriali Riunite (CIR) Group [corporate website]. The complaint stemmed from Fininvest's 1991 acquisition of Italian publishing company Mondadori [corporate website], during which Fininvest bribed a judge in exchange for favorable decisions. In April neither Berlusconi nor the alleged prostitute attended the beginning of the prostitution trial [JURIST report], and the court adjourned after only 10 minutes. Both parties deny having a sexual relationship and Berlusconi has denied any wrongdoing, calling the accusations groundless. In January 2011 the Italian Constitutional Court [official website, in Italian] held hearings and subsequently struck down [JURIST reports] portions of a immunity law [materials, in Italian] backed by Berlusconi that would have granted the premier and other public officials temporary amnesty from any charges while holding office.




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EU court limits privacy rights for public figures
Hillary Stemple on February 7, 2012 2:46 PM ET

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[JURIST] The European Court of Human Rights (ECHR) [official website] issued two rulings [press release] on Tuesday upholding the right of the media to report on celebrities and limiting celebrities' right to privacy. In Axel Springer AG v. Germany [judgment], the court examined whether a German actor's right to privacy was violated when a paper published a newspaper article and photos of his arrest for illegal drug possession at a public festival. The court determined that an injunction restricting publication of articles and photos of the actor was a violation of Article 10 of the European Convention on Human Rights [text, PDF], which protects freedom of expression. The court determined that the actor was sufficiently well known to qualify as a public figure, which gives the public a greater interest in being informed about his arrest and the proceedings against him. Additionally, the court determined that the actor had a decreased expectation of privacy due to the fact that his arrest occurred at a public event and because he had previously released details of his private life through the media. In Van Hannover v. Germany [judgment], the court examined whether the right of privacy of members of the royal family of Monaco had been violated when two magazines published pictures of Princess Caroline of Monaco and her husband that were taken without their consent during a ski vacation. The court ruled that publication of the pictures did not constitute a violation of Article 8 of the Convention on Human Rights, which guarantees a right to respect for private and family life. The court held that the pictures and accompanying text added to a debate of general interest about the royal family of Monaco, and that members of that family must be treated as public figures. In both cases, the court acknowledged the need to balance the right to privacy against the right of the media to freedom of expression, but also indicated that privacy rights are diminished when individuals can be considered public figures.

The ECHR rulings could have broad implications going forward [NYT report] and may play a role in the UK as the British government investigates [JURIST report] whether tougher media regulations are necessary. In July, British Prime Minister David Cameron [official website] announced the formation of a panel to investigate journalism practices in the nation, after allegations of "phone hacking" [JURIST report] surfaced in the British media. The panel is investigating the media and reporters' relationship with police and politicians, as well as the tactics media agents use to get information. While the UK judges are currently split [JURIST report] over the role ECHR decisions should play in the British court system, the ECHR's ruling could limit media reforms proposed by the panel, particularly regarding coverage of celebrities.




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