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Legal news from Thursday, February 7, 2013




Rights groups urge Haiti to pursue case against Jean-Claude Duvalier
Daniel Mullen on February 7, 2013 3:29 PM ET

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[JURIST] Amnesty International (AI) and the Open Society Justice Initiative (OSJI) on Wednesday called upon Haiti to ensure that Jean-Claude Duvalier [CBC profile; JURIST news archive] is brought to justice. Duvalier returned to Haiti in 2011 after 25 years in exile, prompting an investigation [BBC report] for crimes he committed from 1971-1986. Both groups stated [AI press release; OSJI press release] that Duvalier must not "evade justice" for crimes against humanity he committed during his time in power from 1971-1986. James Goldstein, executive director of OSJI said that Haiti is required to bring charges under international law. Javier Zuniga of AI has argued that Duvalier's particular alleged crimes, which include torture, executions, arbitrary detention and enforced disappearances are not subject to statute of limitations under international and stated that "the whole credibility of the Haitian justice system" is at stake in Duvalier's prosecution. The statements from AI and OSJI come one year after Haiti's Investigative Magistrate Carves Jean ruled [JURIST report] that Duvalier would not stand trial for his crimes against humanity because of insufficient legal grounds and the expiration of the statute of limitations.

Last February the US State Department [official website] dispatched [JURIST report] a team of international law experts to Haiti to assess how the country could reinforce the power and independence of its judiciary. That same month, UN Independent Expert Micael Forst said that Haiti is making significant progress [JURIST report] with respect to the rule of law, citing improvements such as the establishment of judicial offices and the adoption of the International Covenant on Economic, Social and Cultural Rights [text; PDF]. In January 2012 a Haitian judge convicted [JURIST report] eight police officers of shooting and killing at least 10 prisoners following the January 2010 earthquake. In December 2011 the UN urged an investigation [JURIST report] into alleged torture and unlawful killings perpetrated by the Haitian National Police (HNP) [official website, in French].




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UN rights experts concerned over death sentence imposed in Bangladesh
Daniel Mullen on February 7, 2013 2:26 PM ET

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[JURIST] Two UN human rights experts on Thursday expressed concern [press release] over the death sentence [JURIST report] imposed by the International Crimes Tribunal Bangladesh (ICBT) [Facebook page; JURIST news archive] on Abdul Kalam Azad for crimes during the 1971 Bangladesh Liberation War [GlobalSecurity backgrounder]. Christof Heynes, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions and Gabriela Kanul, the UN Special Rapporteur on the Independence of Judges and Lawyers [official websites] criticized the trial, which they claim did not provide for guarantees of a fair trial and due process. The two human rights experts stated that "Given the importance of these trials and the possible application of the death penalty, it is vitally important that all defendants before the Tribunal receive a fair trial."

The ICTB has been controversial since it was established [JURIST report] by Bangladeshi officials in 2010 to investigate and prosecute crimes committed during the Bangladesh Liberation War. Earlier this week the ICTB sentenced [JURIST report] Abdul Quader Mollah, leader of the Islamist party Jammaat-e-Islami (JI) [party website] to life in prison. In January the ICTB rejected [JURIST report] Mollah's plea for a retrial after he claimed that the trial procedures were compromised. In December, the chairman of the ICTB three judge panel announced [JURIST report] his resignation following allegations of impropriety. In June the ICTB rejected [JURIST report] a bail petition from JI leader and former parliament member Delwar Hossain Sayeedee.




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Rights groups challenge Alabama immigrant 'black list'
Rebecca DiLeonardo on February 7, 2013 2:16 PM ET

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[JURIST] A coalition of rights groups including the American Civil Liberties Union (ACLU) [advocacy website] filed a lawsuit [complaint, PDF; press release] on Thursday to block a portion of Alabama's latest immigration law [HB 658 text] that requires law enforcement to publish a list of immigrants who may be undocumented. HB 658 was signed [JURIST report] by Alabama Governor Robert Bentley [official website] last May and was designed to "simplify and clarify" the state's existing immigration law [HB 56, PDF]. In a press release, the ACLU criticized the immigrant "black list" which offers no mechanism for persons on the list to challenge their inclusion. Justin Cox, staff attorney with the ACLU Immigrants' Rights Project said the provision is unconstitutional and called on Alabama to consider alternatives:
This law violates privacy laws and basic constitutional rights, as well as conflicts with fundamental American values of fairness and equality. Instead of moving forward with a mean-spirited law that is doomed to fail, Alabama should join the rest of the country and focus on common-sense reforms that benefit citizens and immigrants alike.
The lawsuit, filed in the US District Court for the Middle District of Alabama [official website], asks the court to issue a permanent injunction blocking the provision of the law that mandates the immigrant black list.

Alabama is currently litigating a challenge to another portion of its immigration regulations. Alabama Attorney General Luther Strange last month asked the US Supreme Court [JURIST report] to overturn a recent decision striking down provisions of Alabama's HB 56. The US Court of Appeals for the Eleventh Circuit denied a request [JURIST report] by the state of Alabama to reconsider its ruling in November. Alabama's appeal is from a decision [JURIST report] issued last August by the Eleventh Circuit which struck down several provisions of HB 56, including a provision that requires public schools to check the immigration status of students and makes it a crime for undocumented immigrants to solicit work.




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UN welcomes mechanism for individuals to report human rights abuses
Keith Herting on February 7, 2013 1:37 PM ET

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[JURIST] The UN on Wednesday welcomed [UN News Centre report] the activation of a mechanism to simplify the means to report human rights abuses to the international community. The instrument, called the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights [text, PDF], was developed in 2008 by the international body to provide a voice [UN News Centre backgrounder] to victims of rights abuses but had no effect until the Protocol was adopted by 10 participating nation-states. On Tuesday, Uruguay became the tenth member to ratify the Protocol which activated the provision that the instrument would go into full effect three months from that date, May 5. Calling the event a "major breakthrough," UN High Commissioner for Human Rights Navi Pillay [official profile] welcomed the development [press release] saying the activation of the Protocol would:
"[P]rovide an important platform to expose abuses linked to poverty, discrimination and neglect, which up until now victims have had to endure without any possible recourse at the international level. It will provide a way for individuals, who may otherwise be isolated and powerless, to make the international community aware of their situation."
Pillay has requested that the other 160 nations in the UN also ratify the Protocol.

The Protocol only has effect on the nations which have individually ratified it meaning that when the Provision takes effect only Argentina, Bolivia, Bosnia and Herzegovina, Ecuador, El Salvador, Mongolia, Portugal, Slovakia, Spain and Uruguay will be subject to its provisions. Some critics have suggested the opt-in nature for the Protocol means that many suspect nations will not be governed by the instrument, leaving those people most in danger of rights abuses with no change in their means to report those abuses.




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Israel can improve war crimes investigations: commission report
Brandon Gatto on February 7, 2013 12:41 PM ET

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[JURIST] A civilian committee tasked with investigating Israel's 2010 flotilla raid [UN report, PDF; JURIST news archive] on several Turkish ships headed for the blockaded Gaza Strip concluded [report, PDF] on Wednesday that investigations by the Israel Defense Forces (IDF) [official website] of alleged war crimes violations meet the standards proscribed by international law, but that there is still room to improve "the system of reviewing and investigating." In Part II of its overall report, the Turkel Commission [official website] made 18 recommendations [press release, PDF] to various branches of the Israeli government for improving its response to future incidents like the raid. Among its most imperative recommendations, the commission stressed the need to "establish a unit specializing in the laws of armed conflict ... at the Ministry of Justice." Additionally, given that a criminal investigation was not opened immediately after the Gaza flotilla raid, the group urged "the adoption of a policy that requires investigations into significant and unusual incidents" despite there being no legal obligation to do so. Finally, the commission recommended that the scene of such incidents be investigated by a fact-finding assessment team assigned to focus on the legal aspects of the incident. The work of the commission, which is headed by former Israeli Supreme Court [official website] Justice Jacob Turkel and began over two years ago, is now complete.

The Turkel Commission released the first part of its report [JURIST report] in January 2011, finding that Israel was in full compliance with international law regarding both security maritime regulations and humanitarian obligations during the Gaza flotilla raid, which resulted in the deaths of nine pro-Palestine activists. In September 2010 the UN Human Rights Council (UNHRC) [official website] agreed to adopt a report that criticized Israel's raid [JURIST reports] of the Gaza-bound flotilla and finding that the country committed various violations of human rights and international humanitarian law. One month prior, Israeli Prime Minister Benjamin Netanyahu [official website] testified before the civilian commission [JURIST report] and expressed confidence that the commission would find Israeli actions to be in compliance with international law, explaining the Israeli response to the flotilla in the context of the ongoing conflict between Israel and Hamas. In July 2010 an Israeli military probe into the flotilla incident found insufficient intelligence and planning, but concluded that no punishments were necessary [JURIST report]. The incident took place on May 31, 2010 when Israeli forces raided six ships attempting to deliver more than 10,000 tons of aid to Gaza. International law scholars have disagreed about the propriety of the IDF's raid, with some claiming that there were clear violations of international law while others found the raid necessary and proportionate [JURIST op-eds].




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Kenya post-election violence suspect asks ICC to review trial decision
Sung Un Kim on February 7, 2013 12:13 PM ET

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[JURIST] Lawyers for Deputy Prime Minister Uhuru Kenyatta [case material] on Wednesday filed a motion in the International Criminal Court (ICC) [official website] asking for a review of the court's decision to proceed with the trial against Kenyatta. The defense claimed that the prosecution's evidence is fraudulent [AP report], especially given that one of the key witnesses who testified against Kenyatta abandoned his position. Counsel for Kenyatta requested that the court reassess whether the prosecution in fact has sufficient evidence for the prosecution. The prosecution did not comment on the recently filed motion. Kenyatta has been charged for crimes against humanity arising out of the 2007 post-election violence [JURIST news archive] in which more than 1,000 people died. His trial has been set [JURIST report] to begin on April 11 along with former civil service chief Francis Muthaura [case material].

The two Kenyans had announced [JURIST report] in December that, despite their upcoming trials, they will be running together in the next presidential election, scheduled to take place next month. Concern surrounding the trial has been growing as the trial and election draw closer. In October the ICC called for complete cooperation [JURIST report] from the Kenyan government in the investigation and trial process. In June the ICC expressed its desire to start the two Kenyan trials simultaneously [JURIST report] to avoid any appearance of bias in the March 2013 presidential election. William Ruto [case material], who also faces charges for crimes arising out of the 2007 post-election violence, is considered a leading candidate in the election which will take place March 4. In May the appeals chamber of the ICC rejected [JURIST report] the jurisdiction challenges in the cases, clearing the way for trial. The defense lawyers had argued that the court lacked subject matter jurisdiction over them. The appeal stemmed from the pre-trial chamber's decision to confirm the charges [JURIST report] against the four men in January. The ICC claimed jurisdiction over the case despite Kenya's calls for dismissal [JURIST report]. The Kenyan government argued that it was capable of prosecuting the accused men domestically.




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ICC orders Libya to extradite Gaddafi intelligence chief
Brandon Gatto on February 7, 2013 11:46 AM ET

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[JURIST] The International Criminal Court [official website] on Thursday ordered Libyan officials to hand over the former intelligence chief for Muammar Gaddafi [BBC obituary; JURIST news archive] and allow him to meet with his lawyer. The ex-spy chief, Abdullah al-Senussi [BBC profile], has been indicted by the ICC for crimes against humanity stemming from the alleged murders and persecution of Libyan protesters during the Libya conflict [JURIST backgrounder] and uprising in 2011. Despite the order [AP report], however, Libyan authorities continue to contend [JURIST report] that the ICC is a court of last resort and that the transfer of al-Senussi is unnecessary given that Libya is prepared to try him in a domestic proceeding. Al-Senussi's lawyers contend, however, that the former intelligence chief will not receive fair treatment in any Libyan tribunal, thus making an international trial obligatory. If Libya refuses the order and extradition of al-Senussi, the ICC may then report the matter to the UN Security Council [official website] for further investigation.

Thursday's news is the latest in the ongoing effort by Libya to try Gaddafi's son, Saif al-Islam Gaddafi [BBC profile], and al-Senussi nationally rather than turn them over to the ICC. Last month, the ICC asked Libya to address reports [JURIST report] that it planned to try Saif al-Islam and al-Senussi. In October, Libyan government lawyers urged the ICC [JURIST report] to allow the men to be tried in Libya and promised that the trial would be fair. In August, Saif al-Islam stated that he preferred to be tried by the ICC [JURIST report] out of fear that Libya would not try him fairly. In June, four ICC staff members who traveled to Libya to speak with Saif al-Islam were detained by Libyan security forces [JURIST report] and were in custody for nearly four weeks before being released. The ICC issued arrest warrants [Al Jazeera report] for both men in June 2011.




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UN Libya mission welcomes decision to form body to write new constitution
Matthew Pomy on February 7, 2013 11:11 AM ET

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[JURIST] The UN Support Mission in Libya (UNSMIL) [official website] announced [press release] Wednesday that it supports the Libyan General National Congress' decision to form an elected body that will be tasked with writing the country's new constitution. The UNSMIL called the decision an important step in creating a government that reflect the needs of the people. It further called on the Congress to move quickly in implementing the process and offered Libya the assistance of the UNSMIL should it be required.

The announcement is the latest development in the transition of the Libyan government after the fall of Muammar Gaddafi [BBC obituary; JURIST news archive]. Last December, martial law was declared [JURIST report] in Southern Libya. In August, the Libyan national assembly elected [JURIST report] a Gaddafi opponent as interim president. Last January, the Libyan NTC published [JURIST report] a draft law for electing constitutional assembly.




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Russia feminist rock group appeals conviction to Europe rights court
Sung Un Kim on February 7, 2013 11:00 AM ET

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[JURIST] Russian feminist rock band Pussy Riot [RASPI backgrounder; JURIST news archive] on Wednesday filed a complaint in the European Court of Human Rights (ECHR) [official website] challenging their conviction. They contend [Telegraph report] that their conviction violates four articles of the European Convention on Human Rights [text, PDF]: the freedom of speech, the right to liberty and security, the prohibition of torture and the right to a fair trial. Maria Alekhina, Yekaterina Samutsevich and Natalia Tolokonnikova were given two-year prison sentences after they were convicted [JURIST report] in August of hooliganism in connection with "guerrilla performance" of a protest song in February at the altar of downtown Moscow's Christ the Savior Cathedral.

Last month court denied [JURIST report] the band's appeal of an Internet ban on their videos. The court ruled that the band's videos questioning the role of religion in Russian government was "extremist" and President Vladimir Putin argued that the ban is protecting the beliefs of the Russian Orthodox population. During the same month a court denied [JURIST report] a sentencing deferral for band member Alekhina, despite her having a young child. In October Alekhina and Tolokonnikova were transferred to separate regional prisons [JURIST report] generally reserved for dangerous criminals to serve their two-year sentences. Earlier in October Samutsevich was freed on appeal [JURIST report] because she did not actually participate in the protest song, and she vowed to take the band's case to the ECHR on charges that the Russian government had illegally detained them and also violated the rock group's right to free speech.




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Federal appeals court hears challenge to indefinite detention law
Matthew Pomy on February 7, 2013 10:24 AM ET

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[JURIST] The US Court of Appeals for the Second Circuit [official website] heard arguments on Wednesday in a case challenging the US' authority to detain suspected terrorists indefintely. The law would allow authorities to detain certain suspects indefinitely if they are found to have aided al Qaeda, the Taliban or "associated forces." Section 1021(b)(2) of the National Defense Authorization Act (NDAA) [text, PDF] affirms the authority of the president under the Authorization for Use of Military Force (AUMF) to detain indefinitely any "person who was a part of or substantially supported al Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces." Opponents of the law argue [Reuters report] it would potentially stifle journalists' freedom of speech, an argument supported by the lower court. Lawyers for the government claim that striking down the law would pose a threat to national security and are quick to point out that no journalists have been held under the law in the 10 years since it was passed.

Controversy surrounding this provision has escalated since it was originally struck down [JURIST report] by the US District Court for the Southern District of New York [official website] last September. In December Supreme Court Justice Ruth Bader Ginsburg denied a request to block the law after challengers of the law appealed [JURIST reports] to the Supreme Court to block its enforcement. The district court's order striking down the law was stayed [JURIST report] by the Second Circuit just after the district's ruling in September. The Second Circuit then extended [JURIST report] the stay until it could officially rule on the issue.




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Federal judge dismisses Iraq oil-for-food corruption lawsuit
Addison Morris on February 7, 2013 9:43 AM ET

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[JURIST] A judge for the US District Court for the Southern District of New York [official website] on Wednesday dismissed [opinion, PDF] an Iraqi government lawsuit accusing numerous business entities of conspiring with Saddam Hussein [JURIST news archive] to disrupt the UN Oil-for-Food Program [official website; JURIST news archive], thereby denying Iraqi citizens access to approximately $10 billion of essential aid. US District Judge Sidney Stein said the government of Iraq could not recover damages under a US anti-racketeering law because "the scheme described by Iraq is primarily foreign, focused on a multinational organization, engineered by a foreign government, and concerned with Iraqi oil, goods, and contracts." In addition, the court held that "the Republic of Iraq bears responsibility in this action for the Hussein Regime's corruption of the [Program]," rejecting Iraq's attempt to "sidestep responsibility because the conduct was illegal or the actors held power illegitimately." Iraq brought the claim in 2008, accusing more than 90 companies, subsidiaries and affiliates of responsibility for the program's corruption.

The oil-for-food program was established in 1996 by the UN, allowing Iraq to sell oil in order to finance the purchase of food, medicine and other goods for those citizens hurt by international trade sanctions [JURIST report] in the wake of the first Gulf War. Since its inception, several companies and individuals involved with the program have been accused of corruption. In July 2010 General Electric Co. (GE) [corporate website] agreed to a $23.5 million settlement after the US Securities and Exchange Commission (SEC) filed a complaint accusing GE of bribing Iraqi officials [JURIST report] to receive contracts under the oil-for-food program. That April a Paris judge charged [JURIST report] French oil company Total [corporate website] with bribery and complicity in connection with the program. According to the 2005 Volcker report, published by a UN-appointed Independent Inquiry Committee [official website] investigating corruption in the oil-for-food program, oil companies like Total allegedly paid Iraqi officials over $1.5 billion in illegal kickbacks [materials] in exchange for being selected as oil purchasers. Additionally, oil company Chevron [corporate website] also paid a large settlement to the SEC concerning misuse of the program, and two Texan oil barons, David Chalmers and Oscar Wyatt Jr. [JURIST reports], were sentenced to prison for their roles in the scandal. In 2005, Grundfos, a Danish company that produces industrial pumps, admitted [JURIST report] that two employees paid kickbacks to authorities in Saddam Hussein's government under the oil-for-food program.




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