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Legal news from Friday, November 6, 2009

ICC assigns judges to Kenya post-election violence situation
Jaclyn Belczyk on November 6, 2009 4:03 PM ET

[JURIST] The International Criminal Court (ICC) [official website] announced Friday that it has assigned [decision, PDF; press release] three judges to the situation involving the violence perpetrated in the wake of Kenya's 2007 presidential elections [JURIST news archive]. The decision came in response to a Thursday letter [text, PDF] from chief prosecutor Luis Moreno-Ocampo [official profile] in which he said that he intends to request formal authorization in December to initiate an investigation into the situation. Moreno-Ocampo may not begin a formal investigation until he receives the judges' authorization. The investigation may only proceed if Kenya does not conduct its own investigation into the matter, which it has thus far failed to do [JURIST report].

Earlier Thursday, Moreno-Ocampo met with Kenyan President Mwai Kibaki [official profile] and opposition leader Raila Odinga [campaign website] to inform them of his plans to seek an investigation [JURIST report]. Moreno-Ocampo first stated his intentions [JURIST report] to pursue the matter in October, citing Kenya's ratification of the Rome Statute [text, PDF] as grounds for jurisdiction. In August, Human Rights Watch (HRW) [advocacy website] called for an independent tribunal [JURIST report] with international support and participation because "the Kenyan judiciary lacks independence," and the necessary reforms announced [transcript] by the Kenyan Cabinet [official website] in late July would be insufficient. Earlier in July, Moreno-Ocampo received and reviewed a sealed envelope sent to the ICC [JURIST reports] by former UN secretary-general and current chairman of the African Union Panel of Eminent African Personalities Kofi Annan [UN profile] that contained a list of suspects believed to be responsible for the violence. More than 1,000 people were killed and 500,000 displaced following allegations of fraud [JURIST report] in the country's presidential election.

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Rights group urges US government to reform Afghanistan detainee policy
Jaclyn Belczyk on November 6, 2009 2:56 PM ET

[JURIST] The US should reform its detention policy [press release] at Bagram Air Base [JURIST news archive] in Afghanistan in order to combat counterinsurgency, according to a report [text, PDF] released Thursday by Human Rights First (HRF) [advocacy website]. HRF called on the governments of the US and Afghanistan to reach an agreement that "set[s] forth grounds and procedures for detention in accordance with international law." The report also urged the US to make sure that detainees have opportunities to challenge the lawfulness of their detentions. The report's author, Sahr MuhammedAlly, said:

Successful counterinsurgency depends on US actions being seen as fair, humane, and beneficial to the security of the Afghan people, whose cooperation is needed to ensure a stable Afghanistan. To achieve this goal, the US government should take further steps now to support US goals of bolstering Afghan sovereignty, increase the capacity of the Afghans to handle detentions on their own, and to establish legitimacy of US detentions in the eyes of the Afghan people by reducing the risks of arbitrary detentions, mistaken captures, and to ensure detainees a more meaningful way to challenge their detention.

HRW also released a second report [text, PDF] Thursday outlining the detention and trials of detainees interviewed in April 2009.

In September, the American Civil Liberties Union (ACLU) [advocacy website] filed a lawsuit [JURIST report] seeking information related to the treatment of prisoners at Bagram, citing fears that is becoming the "new Guantanamo." Earlier that month, the Obama administration issued new guidelines [JURIST report] allowing Bagram detainees to challenge their indefinite incarceration. Detainees will have access to members of the US military who would be able to gather classified evidence and question witnesses on behalf of any detainee challenging his detention. The military officials would not be lawyers, but they are expected to provide detainees, some of whom have been held for more than five years without charges, better representation before military-appointed review boards. The changes come amidst ongoing protests [JURIST report] by prisoners. Hundreds of Bagram detainees have been refusing shower and exercise time and have ceased participation in a family visits and teleconferences program set up by the International Committee of the Red Cross (ICRC) [advocacy website].

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Russia suspect confesses to killing human rights lawyer
Patrice Collins on November 6, 2009 1:05 PM ET

[JURIST] A lawyer for the man accused of the double murder [JURIST report] of human rights lawyer Stanislav Markelov and journalist Anastasia Baburova said Friday that his client has confessed to the crime. Nikita Tikhonov and female companion Yevgenia Khasis were arrested Thursday and brought before the Basmanny District Court. In an interview [materials, in Russian] on the radio program Echo Moskvy, Tikhonov's lawyer, Yevgeny Skripelev, said Tikhonov did not intend to kill [Interfax report, in Russian] Baburova and murdered Markelov out of personal animosity rather than ideological grounds. Skripelev refuted claims that Tikhonov was part of the banned ultra-nationalist group Russian National Unity, insisting that he operated on his own accord. Markelov gained notoriety as director the the Rule of Law Institute [advocacy website] prosecuting human rights abuses in Chechnya. He was leaving a press conference concerning his appeal against the early parole [Moscow Times report] of Yuri Budanov, a former Russian military commander convicted of murdering a Chechen woman, when he and Babarova were shot in broad daylight in front of the Kropotkinskaya metro station.

Markelov represented famed journalist Anna Politkovskaya [BBC obituary; JURIST news archive], who was shot to death [JURIST report] in October 2006. To date, no one has been convicted [JURIST report] of Politkovskaya's murder. Markelov, Barbarova, and Politkovskaya are among many Russian human rights activists and journalists who have been murdered recently. Earlier this summer, Chechen human rights activist Zarema Sadulayeva and her husband Alik Dzhabrailov were found dead [JURIST report] in the trunk of their car after being abducted in front of their workplace. The killings came less than a month after the death [JURIST report] of Russian human rights activist Natalia Estemirova [BBC obituary]. In July, the body of Russian human rights activist Andrei Kulagin [JURIST report] was found in a quarry. The Committee to Protect Journalists (CPJ) reported that, between 1992 and 2006, 42 journalists were killed [JURIST report] in Russia.

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Washington voters approve expanded domestic partnership rights
Megan McKee on November 6, 2009 10:45 AM ET

[JURIST] Washington voters have narrowly approved Referendum 71 (R-71) [text, PDF], expanding the state's domestic partnership law, according to results Thursday. R-71 was a ballot measure that asked Washington residents to decide the fate of the state's 2009 domestic partnership law [materials; JURIST report], which has been nicknamed the "everything but marriage law," as it affords domestic partners all rights enjoyed by married couples under Washington state law. Under R-71, same-sex partners registered with the state will receive some 250 new rights [Olympian report] and all of the approximately 425 state rights afforded to married couples, including the rights to inherit a partner's public pension and to take leave to care for a sick or injured partner. The legislation was signed in May by the governor and originally set to take effect on July 26, but its implementation was put on hold pending the results of the referendum. Official results [materials] report that the measure was approved by 52.56 percent and rejected by 47.44 percent of voters, but it only carried nine of the state's 39 counties.

R-71 builds on the earlier expansion of domestic partnership rights by lawmakers in 2007 and 2008. The 2007 domestic partnership law [text, PDF; JURIST report] allowed same-sex couples over the age of 18 living together to register with the state's domestic partnership registry. Registered same-sex couples were afforded hospital visitation rights, inheritance rights, and the right to authorize medical decisions for one's partner. In 2008, lawmakers expanded the previous year's law, giving domestic partners legal standing under laws covering probate and trusts, community property, and guardianship.

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UN General Assembly adopts resolution requiring independent Gaza investigations
Zach Zagger on November 6, 2009 10:21 AM ET

[JURIST] The UN General Assembly [official website] on Thursday adopted a resolution giving Israel and Palestine three months to conduct independent investigations into possible war crimes committed during last winter's Gaza conflict [JURIST news archive]. The General Assembly voted 114-18 with 44 abstentions [press release] expressing support for the Goldstone Report [text, PDF], the result of a UN Human Rights Council (UNHRC) [official website] fact-finding mission, which accused both Israeli Defense Forces (IDF) [official website] and Hamas [GlobalSecurity backgrounder] fighters of war crimes during the conflict. Israel has criticized the report as biased, questioned the objectivity of the fact-finding, and on Wednesday urged the UN not to adopt the report's findings in a statement to the General Assembly [statement text]. Israeli Ministry of Foreign Affairs [official website] spokesperson Yigal Palmor said that Israel rejects [press release] Thursday's resolution, calling it "completely detached from realities on the ground":

The results of the vote and the large number of member states who voted against or abstained, demonstrate clearly that the resolution does not have the support of the "moral majority" of UN members. ... During Operation "Cast Lead" in Gaza, the Israel Defense Force demonstrated higher military and moral standards than each and every one of this resolution's instigators. Israel, like any other democratic nation, maintains the right to self-defense, and, as was witnessed in recent days, will continue to act to protect the lives of its citizens from the threat of international terrorism.

The UN Security Council [official website] is unlikely to take action on the General Assembly's non-binding resolution, as China was alone among the five permanent members [UN materials] in supporting the resolution.

In October, Israeli Prime Minister Benjamin Netanyahu [official profile] announced [JURIST report] the formation of a task force to respond to the Goldstone Report. The formation of the task force came just two weeks after the UNHRC passed a resolution officially endorsing [JURIST report] the Goldstone Report. In September, Richard Goldstone, head of the Gaza mission, presented his findings [JURIST report] to the UNHRC. The Goldstone mission began its field operations in Gaza in June, entering Gaza through Egypt's Rafah crossing after Israel announced that it would not cooperate with the investigation, and concluded hearings [JURIST reports] in July. Goldstone was appointed to head the investigation [JURIST report] in April, amid strong criticism [JURIST report] from Israel.

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Senate defeats proposal to prevent 9/11 suspects from being tried in federal court
Andrea Bottorff on November 6, 2009 10:05 AM ET

[JURIST] The US Senate [official website] voted 54-45 [roll call vote] Thursday to defeat an amendment [S AMDT 2669 materials] to an appropriations bill [HR 2847 materials] that would have prevented Guantanamo Bay detainees accused of involvement in 9/11 [JURIST news archives] from being tried in federal courts. The amendment was proposed by Senator Lindsey Graham (R-SC) [official website] in response to a letter [text] opposing federal court trials, signed by families of 9/11 victims. The decision is a success for US Attorney General Eric Holder [official profile] and US Defense Secretary Robert Gates [official profile], who had supported allowing the government to decide between civilian and military trials. US President Barack Obama's administration expects to announce plans for detainee prosecutions by November 16.

In October, Obama signed [JURIST report] the Department of Homeland Security Appropriations Act of 2010 [HR 2892 materials] into law, which allows for Guantanamo Bay detainees to be transferred to the US for prosecution. The bill allocates $42.78 billion for the Department of Homeland Security (DHS) [official website] and, among other provisions, requires certain information about each transferred detainee to be disclosed to Congress including costs, legal rationales, and possible risks. Additionally, in order to close the Guantanamo facility, the president will be required to submit a report to Congress detailing the disposition of each current detainee. Congress also passed a bill last month amending [JURIST report] the Military Commissions Act of 2006 [text, PDF] to provide suspected terrorists with greater due process rights in military tribunals. The legislation comes after Holder announced that the Obama administration may miss its January deadline for closing the military prison at Guantanamo Bay, echoing prior statements [JURIST reports] by top administration officials.

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EU agrees on rules to reform telecommunications markets
Ann Riley on November 6, 2009 9:55 AM ET

[JURIST] The European Parliament and the Council of Ministers [official websites] on Thursday unanimously reached an agreement [press release] on rules to increase competition between telecommunications providers and protect the consumer rights of Internet and mobile phone users. The agreement on the European Union (EU) Telecoms Reform package was reached after intense negotiations by the conciliation committee, which was arranged by the European Commission (EC) [official website] and composed of representatives of the 27 member states, Parliament, the Council of Ministers, and the EC. EU Commissioner for Information Society and Media Viviane Reding [official website] praised [video] the agreement, saying:

The reform will substantially enhance consumer rights and consumer choice in Europe's telecoms markets, and add new guarantees to ensure the openness and neutrality of the Internet. It will boost competition and investment in telecoms markets, and open up airwaves for new mobile services, allowing Internet broadband for all Europeans.

The committee unanimously agreed on a provision substantially protecting the rights of EU citizens while providing procedural and judicial safeguards and due process rights, which Reding called a "strong signal that the EU takes fundamental rights very seriously." A plenary session of the European Parliament and the Council of Ministers is scheduled to vote on the new provision within the next six weeks. The Body of European Regulators for Electronic Communications (BEREC), established by the agreement to ensure increasingly neutral and open Internet and broadband access for all Europeans, is set to be created in the spring of 2010, followed a year later by the transfer of the Telecoms Reform into the national legislation of the 27 EU member states.

The Telecoms Reform package was initially proposed [press release] by the EC in November 2007. In May, the European Parliament endorsed [press release] the Telecoms Reform, adding a controversial amendment establishing procedural and judicial rights of EU citizens and the degree to which the Internet should be protected by EU law. Last month, the French Constitutional Council [official website, in French] approved [JURIST report] a controversial Internet piracy law [JURIST news archive] that would allow authorities to terminate an individual's Internet access for up to one year after a third violation of intellectual property laws for downloading or sharing movies and music. In contrast, the Finnish government announced last month that Internet access is a legal right [JURIST report] for all citizens, becoming the first country to make such a declaration.

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Iraq official urges election delay after parliament fails to update law
Sarah Miley on November 6, 2009 9:53 AM ET

[JURIST] An official from the Iraqi Independent High Electoral Commission on Friday called for a delay of the January 16 parliamentary elections, after the Iraqi Parliament [official websites, in Arabic] remained at an impasse over updating a controversial provincial election law [JURIST report]. Electoral commission chief Faraj al-Haidari told state media that it would be impossible to organize elections by January 16. The parliament is at a stalemate [JURIST report] over two disputed issues - the inclusion of candidate names on the ballot instead of a closed list of parties, which would threaten the incumbency of powerful but unpopular MPs; and deciding who will be allowed to vote in the ethnically divided city of Kirkuk [GlobalSecurity backgrounder], which is residence to thousands of Kurds as well as Arabs. Many Arabs in Kirkuk feel that the voter records should pre-date the immigration of the Kurds, empowering Arab parties, or split the city into two voting districts. The election law was supposed to be passed 90 days before the election, which according to the Iraqi Constitution [text, PDF] must take place by January 31, 2010. The election was pushed up to January 16 as a result of a Shia religious holiday in early February, which means the election delay will possibly miss its constitutional deadline and be delayed for several months.

The possible delay in Iraqi legislative elections will also have an effect on the Obama administration's troop withdrawal plan. American military commanders planned to start withdrawing troops depending on the outcome of a draft bill approved [JURIST report] by the Iraqi Cabinet that would require a referendum on the US-Iraq Status of Forces Agreement (SOFA) [text, PDF], which allows US troops to remain in the country until the end of 2011. Under the proposed bill, which must still be approved by the Iraqi Parliament, the referendum was supposed to occur during the January 16 elections. If the SOFA were rejected by Iraqi voters, US troops would have only one year to withdraw [Washington Post report], which would result in a January 2011 withdrawal - nearly a year ahead of schedule, making it one of the largest logistical feats taken on by a modern army. No parliamentary vote on the bill has been scheduled.

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ICC sets trial of Congo rebel leader Bemba for April 27
Ximena Marinero on November 6, 2009 8:08 AM ET

[JURIST] The International Criminal Court (ICC) [official website] on Thursday set the trial date [order, PDF; press release] for former Democratic Republic of Congo (DRC) vice-president Jean-Pierre Bemba Gombo [ICC materials; JURIST news archive] for April 27. The trial date was set to give the defense six months of preparation from the date the Office of the Prosecutor fulfills its disclosure obligations, in compliance with the ICC Rules of Procedure and Evidence. The ICC order also allotted the defense €30,150 per month to be paid for the period beginning in March 2009 and until there is a "material change in circumstances." Bemba is accused of committing crimes against humanity and war crimes in the Central African Republic (CAR) [BBC backgrounder] as military leader of the Congo Liberation Movement (MLC) [party website, in French] from October 2002 to May 2003. During the trial, the prosecution intends to call 37 witnesses and introduce 476 documents.

The ICC Appeals Chamber decided in September that Bemba Gombo will remain in custody until his trial. In August, the ICC ordered Bemba to stand trial [JURIST report] for the alleged commission of violent war crimes. Bemba was arrested [JURIST report] in Belgium after the ICC issued a warrant for his arrest in May 2008 for his actions in the CAR. He was indicted and transferred [JURIST report] to the ICC in July 2008. The proceedings against Bemba were initially postponed, but the pre-trial hearing [JURIST reports] to determine what charges the rebel leader is to face commenced in January. Bemba was elected to the Congolese Senate after losing a run-off presidential election [JURIST report] to Joseph Kabila [BBC profile], who, in December 2006, became the first freely-elected president of the DRC since 1960. After the election, Bemba's private militia force led a violent campaign against government troops until the DRC Supreme Court rejected his election challenge [JURIST report].

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Unprecedented Notice of Warrantless Wiretapping in a Closed Case
Ramzi Kassem
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