[JURIST] A judge for the US District Court for the Eastern District of California [official website] on Monday temporarily blocked [order, PDF] California from enforcing a new law that prohibits mental health providers from engaging in sexual orientation change efforts (SOCE) with minors. Senate Bill 1172 [text], the first of its kind, deems that any SOCE attempted on minors shall be considered unprofessional conduct and subject the mental health provider to discipline. Mental health providers Donald Welch, Anthony Duk and Aaron Bitzer sought to enjoin enforcement of SB 1172 before it goes into effect in January, claiming the law violates their right to freedom of speech under the First Amendment [text]. Judge William Shubb found that plaintiffs were likely to succeed on the merits, granting a preliminary injunction limited only to the three plaintiffs:
Here, the public has an interest in the protection and mental well-being of minors, and the court does not take lightly the possible harm SOCE may cause minors, especially when forced on minors who did not choose to undergo SOCE. ... Countered against this is the public's interest in preserving First Amendment rights. Given the limited scope and duration of a preliminary injunction in this case, the court has no difficulty in concluding that protecting an individual's First Amendment rights outweighs the public's interest in rushing to enforce an unprecedented law.
[JURIST] The International Criminal Tribunal for the Former Yugoslavia (ICTY) [official website] on Tuesday upheld [judgment, PDF] the life sentence Milan Lukic, a Bosnian Serb commander who was sentenced to life in prison for crimes that include burning more than 100 people alive during the 1992 Bosnian War. Lukic was arrested [JURIST report] in August 2005 and prosecuted as the leader of an ethnic Serb paramilitary group known as the White Eagles. Lukic was tried [case materials] and convicted [JURIST report] on counts of persecution, murder, extermination, cruel treatment, and inhuman acts against Bosnian Muslims. Among his many crimes against humanity, he is most notorious for barricading over 50 Muslim men, women and children inside a house and setting it on fire. Lukic submitted eight appeals against his convictions, but the court rejected almost all aspects of his case and confirmed [press release] that the life sentence would stand.
This marks the first time that the Appeals Chamber has ever upheld a life imprisonment sentence. Lukic's cousin, Sredoje Lukic, had his sentence reduced from 30 to 27 years by the same court Tuesday, after being convicted in aiding and abetting his cousin's crimes.
Since its establishment in 1993, the ICTY has indicted 161 people for violations of humanitarian law committed in the territory of the former Yugoslavia between 1991 and 2001. In November, the ICTY acquitted [JURIST report] former Kosovo Liberation Army commanders Ramush Haradinaj [JURIST op-ed], Idriz Balaj, and Laji Brahimaj of all charges. Also in November, the ICTY overturned the convictions [JURIST report] of two Croat generals for crimes against humanity and war crimes against Serb civilians committed during a 1995 military blitz. Ex-Yugoslav army chief Momcilo Perisic began his appeal [JURIST report] before the ICTY in October in an attempt to overturn his conviction [JURIST report] on crimes against humanity and war crimes committed during the wars in Bosnia and Croatia. Earlier in October, the ICTY opened the trial of Goran Hadzic [JURIST report], the last suspect remaining to be tried by the court.
[JURIST] Amnesty International (AI) [advocacy website] on Tuesday identified a series of gross human rights abuses [press release] committed by al Qaeda affiliates and Yemen's government forces during the 2011–2012 conflict over control of the country's southern region of Abyan. In its detailed report "Conflict in Yemen: Abyan's Darkest Hour" [text, PDF], AI explained that the violence initiated by al Qaeda affiliate Ansar al-Sharia as well as the government response to that violence constituted violations of International Humanitarian Law (IHL). According to the report:
After Ansar al-Shari'a took control of large parts of the governorate of Abyan—and later expanded to cities in the governorates of Shabwa and al-Bayda—it ruled with an iron fist and was responsible for a wide set of human rights abuses. These included imposing cruel, inhuman and degrading punishments on alleged criminals, enforcing through threats and intimidation repressive social or religious norms, and detaining and harassing community activists. It also committed crime to finance its operations and imposed restrictions on the operations of schools and hospitals.
AI also criticized the Yemeni government for attacking residential areas, obstructing medical care and directing "enforced disappearances" during the conflict. AI urged the Yemeni government to ensure that conduct an impartial investigation and prosecute individuals on both sides who have violated international law. The group also urged the government to give clear instructions to military personnel regarding international humanitarian law and the treatment of prisoners.
Al Qaeda [JURIST news archive] has many active supporters and sub-groups throughout the world. Recently, four men in Califoria were charged with terrorism-related offenses [JURIST report] and for attempting to join al Qaeda. Last October, Egyptian-born Muslim cleric Abu Hamza al-Masri [BBC profile] pleaded not guilty [JURIST report] to 11 criminal charges, including providing material support to terrorist groups such as al Qaeda. Outside of the US, there have been attempts to bring justice to groups who aid and abet al Qaeda. Earlier in October, an Iraq court sentenced a US citizen to life in prison [JURIST report] for financing terrorist attacks by al Qaeda. The Human Rights Watch (HRW) [official site] has also drawn international attention to Islamic terrorist groups, including al Qaeda, recruiting child soldiers in Mali.
[JURIST] More than 300 of Sri Lanka's judges met in the capital Colombo on Monday to demand an impartial inquiry into charges against the nation's Supreme Court [official website] chief justice. The judges issued a statement [Reuters report] in which they rejected an 11-member committee appointed by Parliament Speaker Chamal Rajapaksa, the elder brother of the President Mahendra Rajapaksa [Time profile], to investigate the claims made by Rajapaksa's ruling party in an impeachment motion filed against the cheif justice last month. The government has accused Shirani Bandaranayake [official profile], Sri Lanka's first female head of the Supreme Court, of overstepping her authority. The judges declared that the impeachment proceedings against Chief Justice Bandaranayake should be impartial and transparent, stating that it is unjust for an inquiry into the impeachment claims to be conducted by the parties who brought the allegations. The judges also voiced concern regarding defamatory media statements against the chief justice and the judiciary that could damage the rule of the law in the country.
The impeachment of Bandaranayake sparked heavy criticism among Sri Lanka's citizens. Last month the UN Special Rapporteur on the independence of judges and lawyers urged [JURIST report] Sri Lanka to take appropriate measures to protect the country's judiciary from threats, intimidation and physical attacks. Earlier last month hundreds of Sri Lankan lawyers and citizens protested [JURIST report] on the street in Colombo calling the government to halt to the impeachment. Tension continues to grow between the Sri Lankan government and the judiciary after an outspoken judge was assaulted in October [JURIST report]. Sri Lanka is still struggling to establish rule of law in the wake of a 26-year civil war that ended in 2009. In July the government of Sri Lanka said that it may take up to five years to prosecute people accused of war crimes [JURIST report] during the civil war it fought with the separatist Liberation Tigers of Tamil Eelam (LTTE) [CFR backgrounder]. Earlier in July Human Rights Watch (HRW) [advocacy website] urged Sri Lanka to stop arresting journalists who criticized the government [JURIST report].
[JURIST] UN Special Rapporteur on the human rights of migrants Francois Crepeau [official profile] on Monday urged [press release] Greece and the EU to increase their efforts to ensure that the rights of all migrants are fully respected as they travel through Greece to other EU destinations. Crepeau said that a large number of migrants are stuck in Greece with little possibility of returning home and little chance of economic and social assimilation due to the country's current financial crisis and employment issues. The Special Rapporteur criticized systemic violence and discrimination against migrants and urged law enforcement to take a greater interest in investigating such conduct. He also expressed concern about Greece's new policy of detaining all irregular migrants found entering the country.
Recently, many human rights groups and organizations have taken issue with Greece's laws and policies governing the treatment of migrants. In July Human Rights Watch [advocacy website] released a report entitled "Hate on the Streets: Xenophobic Violence in Greece," documenting instances of abuse and discrimination [JURIST report] against migrants who traveled Greece seeking refuge from war-torn homelands. In the same month, Amnesty International [advocacy website] openly criticized [JURIST report] Greek authorities and law enforcement for a "pattern of abuses" against demonstrators and administrative detainees, including migrants.
The US Supreme Court denied a petition for writ of certiorari [JURIST report] in the five states' Asian carp suit for the fourth time in February. 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 had 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.
[JURIST] Swedish telecom company Ericsson [corporate website] filed a complaint [text] with the US International Trade Commission [official website] on Friday against Samsung [corporate website] seeking an import ban on Samsung's Galaxy line of products. This came just three days after Ericsson filed suit [JURIST report] against Samsung in the US District Court for the Eastern District of Texas [official website] for patent infringement. Ericsson claims that Samsung violated 19 USC § 1337 [text], which prohibits the importation or sale in the US of products which infringe patents. Ericsson alleges that Samsung violated eleven of Ericsson's patents that involve radio frequency receiver technology, wireless communication device design, user interface technology, modulation technology and standardized communication protocols, such as LTE or WiFi standards. The patents at issue are considered standard-essential [FOSS Patents report] and thus critical to Samsung's devices. Ericsson further alleges that Samsung violated the fair, reasonable and non-discriminatory licensing practices Samsung had agreed to with its own standard-essential patents.
Samsung has been involved in numerous patent infringement lawsuits, especially with Apple [corporate website]. Earlier this month, a judge for the US District Court for the Northern District of California [official website] ruled that Apple and Samsung may each pursue additional patent infringement claims against the other, allowing each company to add devices brought to market after the original lawsuit was filed in February. In October the Dutch Rechtbank's-Gravenhage [official website] court ruled that Samsung did not infringe [JURIST report] on an Apple software patent. In the same month, a UK court also ruled that Samsung did not infringe [JURIST report] on an Apple design patent. In the same time frame Apple appealed [JURIST report] a Tokyo District Court ruling which dismissed the company's claim that Samsung had infringed on its patents. At the beginning of October, the US Court of Appeals for the Federal Circuit [official website] reversed an injunction [JURIST report] against Samsung that prevented it from selling its Galaxy Nexus product. Earlier in August, Apple won a $1.05 billion judgment [JURIST report] in the Northern District of California against Samsung involving other patent infringements.
[JURIST] The US Supreme Court [official website] heard arguments [day call, PDF] in two cases [JURIST report] Monday. The first case, Genesis HealthCare Corp. v. Symczyk [transcript, PDF], concerned whether an issue at the center of a lawsuit is moot if an offer is made to settle with the potential plaintiff. Federal Rule of Civil Procedure (FRCP) 68 [text] encourages settling suits in Federal court 14 days before they go to trial and allows offers to stand for 14 days before they are considered "withdrawn." Some courts have interpreted this rule, coupled with Article III [text] of the Constitution, to mean that if a defendant makes an offer that fully covers the damages the plaintiff was suing for, even if the plaintiff does not accept the offer, the issue in the suit is moot. However, in this case, the plaintiff, Laura Symczyk, did not accept because she was joined by a group of plaintiffs in the suit, and the defendant, Genesis Healthcare Corp. [corporate website] moved for a mootness determination before she could certify her group as a class. The attorney for Genesis argued that the defendant is allowed to make this effort to settle the claim, and as the offer included a liability judgment, the other plaintiffs would be free to make claims that would then be decided on the merits of their individual cases. Symczyk's counsel argued that not only did FRCP 68 not require mootness if a complete offer was made, a full offer to satisfy her injury was never made. He conceded, in agreement with the Solicitor General, that a full acceptance of an offer could require summary judgment.
We think that, just like the Solicitor General, we think that in that circumstance it is possible for the court to enter a default judgment and force relief upon the plaintiff. [...] I think it could work either way so long as the forcing happened within the time period of Rule 68. I don't think the court can, like Lazarus, raise this after it has already been withdrawn. The text of Rule 68 says the offer is now dead. If they had, I imagine, moved for the court to enforce that order, enforce that offer and enter a default judgment within the 14-day period, then I think that would have been something that might have been possible to do.
The Solicitor General argued briefly in support of Symczyk: "Respondent has never been compensated for her individual damage claim, nor has she received a court judgment favorably adjudicating that claim. It follows that her individual claim remains live, as does this collective action. More generally, a settlement offer does not moot a claim if it is not accepted. Individual freedom of contract is basic to our legal system, and mutual assent is always a necessary element for any settlement. Rule 68 embodies those principles."
The court also heard arguments [transcript, PDF] on the Clean Water Act (CWA) [materials], in the consolidated cases Decker v. Northwest Environmental Defense Center and Georgia-Pacific West v. Northwest Environmental Defense Center. The Northwest Environmental Defense Center (NEDC) [advocacy website] sued several logging companies under the CWA's citizen-suit provision, alleging that man-made logging roads were channeling discharge and stormwater into open waters. Whereas they described these as "point sources," which the CWA prohibits, the logging companies, joined by the government, argued that they were natural runoff. The US Court of Appeals for the Ninth Circuit agreed with the NEDC, and the Oregon Department of Forestry [official website] and Georgia-Pacific West [corporate website] appealed to the Supreme Court. They argued that the Environmental Protection Agency (EPA) [official website] and its treatment of storm waters allows a clear reversal. Chief Justice Roberts began arguments by congratulating the counsel for petitioners on "getting almost all the relief they're looking for under the new rule issued on Friday." Congress has prepared several pieces of legislation [SCOTUSblog backgrounder] to support the logging industry and the EPA distributed a new rule [press release] clarifying the issue. The NEDC asked that the court dismiss the case as improvidently granted, in light of congressional and EPA reaction. Justice Stephen Breyer recused himself from considering the case.
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