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Legal news from Friday, November 20, 2009




ICTY appoints UK lawyer to represent Karadzic
Patrice Collins on November 20, 2009 3:05 PM ET

[JURIST] The International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] on Friday appointed [press release] British lawyer Richard Harvey to represent Bosnian Serb leader Radovan Karadzic [case materials; JURIST news archive] if he continues to boycott his trial when proceedings resume in March. Harvey is currently joint head of the British defense firm Garden Court Chambers [firm website] and has extensive experience in high profile criminal defense cases in both the ICTY and the International Criminal Tribunal for Rwanda (ICTR) [official website]. He served as lead defense counsel for Lahi Brahimaj [Trial Watch profile], who was accused of ordering the torture and murder of detainees at Jablanica detention center as local commander of the Kosovo Liberation Amy [CFR backgrounder] and co-counsel in the ICTY Haradin Bala and ICTR Juvenal Kajelijeli [Trial Watch backgrounders] prosecutions. It is unlikely that Karadzic, whose trial was adjourned [JURIST report] just days after it began because of his refusal to participate, will cooperate with Harvey. Karadzic claims that he is boycotting his trial because of inadequate time [JURIST report] to prepare a defense.

The ICTY announced earlier this month that it would appoint counsel [JURIST report] after a tribunal judge again denied Karadzic's request for a 10-month delay. Before requesting delay, Karadzic asked the UN Security Council to grant him immunity from trial after the ICTY appeals chamber rejected [JURIST reports] his argument that he was promised immunity by former US ambassador to the UN Richard Holbrooke in exchange for his resignation. Karadzic faces 11 charges [amended indictment, PDF], including genocide and murder, for war crimes committed during the 1992-1995 Bosnian war.






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Islamic countries lobbying for treaty against religious defamation: report
Sarah Miley on November 20, 2009 2:05 PM ET

[JURIST] The Organization of the Islamic Conference (OIC) [official website] has begun lobbying for the UN General Assembly [official website] to pass an international treaty protecting religious beliefs and symbols from defamation, according to an AP report [text] Friday. The efforts of the OIC are being led by Pakistan and Algeria with full support of the organization's 54 remaining members. The proposal is strongly opposed by western countries due to the effects the ban could have on freedom of speech and expression. The US government has openly condemned [AP report] the idea of a bar on defamation of religion, which could have the adverse affect of suppressing dissidents and reformists in Muslim countries. Pakistani diplomat, Marghoob Saleem Butt, defended the OIC's proposal telling the AP that, "[t]here has to be a balance between freedom of expression and respect for others. ... Taking the symbol of a whole religion and portraying him as a terrorist, that is where we draw the line." Butt was referring to a string of satirical Muslim comics published in Denmark four years ago, one of which depicted the Prophet Mohammed as a terrorist. The proposed ban does not state who would determine which actions would incite criminal liability, but these decision would likely be initially decided by each country's criminal court.

Last month, the US State Department [official website] released [JURIST report] its annual Report on International Religious Freedom [materials], criticizing Islamic countries for limiting religious expression. The report found that countries such as North Korea and Iran have attempted to prevent religious defamation as a way to limit religious expression. Secretary of State Hillary Clinton [official profile] said [transcript] that freedom of religion is essential not only in the US but in every society, and limiting an individual's right of expression reduces that freedom. In addition to North Korea and Iran, the report criticized Myanmar, China, Sudan, Eritrea, Saudi Arabia, and Uzbekistan.






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Israel Supreme Court bans for-profit prisons
Sarah Paulsworth on November 20, 2009 1:03 PM ET

[JURIST] The Supreme Court of Israel [official website, in Hebrew] banned privately-run prisons on Thursday, ruling [opinion, in Hebrew] 8-1 that they violate prisoners' fundamental rights and introduce an element of profit into the prison system. The decision followed a 2005 lawsuit brought by the Academic College of Law's Human Rights Department against Israel's Ministry of Finance and Ministry of Public Security, the Knesset [official websites, in Hebrew], and prison operator ALA Management. Chief Justice Dorit Beinisch wrote:


The arrangement lays the foundation for the transfer of basic law enforcement and imprisonment powers of the state to a private corporation that operates with the aim of making a profit. This transfer of these powers infringes the constitutional rights to personal freedom and human dignity rooted in Israel's Basic Law: Human Dignity and Freedom.

The case stemmed from the Knesset's 2004 adoption of Amendment 28 [text, in Hebrew] to Israel's Prison's Ordinance, which authorized the construction of a privately-run prison. In the lawsuit, the petitioners alleged that the transferring of prison powers to a private company violated prisoners' fundamental human rights, and that private organizations, working to maximize profit, might seek to reduce costs by skimping on prison facilities and paying guards poorly, further undermining those rights. The government of Israel contended that Amendment 28 envisaged the creation of only one private prison as a pilot project based a model from England, and said the rights of the prisoners at the private prison, like the rights of all other prisoners in Israel, remained dually protected by the law itself and administrative checks. The construction of the private prison, near Be'er Sheva, has already been completed [Haaretz report] and the Israeli government is expected to have to pay hundreds of millions of shekels in compensation to the construction company. The US, UK and Australia all have privately-run prisons.





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Federal judge orders health benefits for same-sex spouse of federal employee
Steve Dotterer on November 20, 2009 1:03 PM ET

[JURIST] A judge for the US Court of Appeals for the Ninth Circuit [official website] on Thursday ordered [text, PDF] the director of the Administrative Office of the US Courts (AO) [official website] to provide health benefits to the same-sex spouse of a federal employee. Karen Golinski, the federal court employee who sued for the benefits, was married in California during the six-month period during which same-sex marriage [JURIST news archive] licenses were granted under state law. The director of the AO, Jim Duff, refused to certify Golinski's eligibility for the benefits to the Office of Personnel Management (OPM) [official website], citing the federal Defense of Marriage Act (DOMA) [text], which prohibits federal recognition of gay and lesbian families. Judge Alex Kozinski rejected that argument, finding that the Federal Employee Health Benefits Act "permit[s] the coverage of same-sex spouses."

A similar order [JURIST report] was issued by the Ninth Circuit Wednesday, when a judge ordered the Office of the Federal Public Defender for the Central District of California [official website] to compensate a gay man denied benefits for his male spouse. Also this week, New York's highest court ruled that same-sex spouses of state employees married in other states are entitled to benefits [JURIST report].






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Senate confirms Obama's earliest judicial nominee after delay
Zach Zagger on November 20, 2009 12:19 PM ET

[JURIST] The US Senate [official website] on Thursday voted 59-39 [roll call vote] to confirm Judge David Hamilton to the US Court of Appeals for the Seventh Circuit [official website], overcoming Republican opposition to secure President Barack Obama's first and longest-delayed judicial nominee. Senate Judiciary Committee Chairman Patrick Leahy (D-VT) [official website] said a Republican filibuster delayed [press release] the vote for five-and-a-half months, since it was first put on the Senate's executive calendar on June 4. On Tuesday, the Senate broke the Republican filibuster, voting 70-29 [roll call vote] to bring debate over the nomination to an end. Obama nominated Hamilton on March 17 and he is Obama's eighth judicial nominee [materials] to be confirmed by the Senate. The American Bar Association Standing Committee on the Federal Judiciary [official website], which rates judicial nominees, unanimously gave Hamilton its highest rating [ratings, PDF] of "well qualified."

Hamilton's confirmation comes less than two weeks after the Senate confirmed [JURIST report] Judge Andre Davis to the US Court of Appeals for the Fourth Circuit [official website], by a vote of 72-16 [roll call vote]. Obama's other judicial nominee confirmations [materials] include Supreme Court Justice Sonia Sotomayor [JURIST news archive], Second Circuit Judge Gerard Lynch, and three federal district court judges.






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US only holdout on UN child rights treaty after Somalia announces intent to ratify
Ann Riley on November 20, 2009 10:15 AM ET

[JURIST] The Somali Transitional Federal Government [official website] on Friday announced its intention to ratify the Convention on the Rights of the Child (CRC) [official website], which, if successful, would make the US the only UN member state not to have done so. The UN International Children's Emergency Fund (UNICEF) [official website] welcomed [Xinhua report] the announcement that Somalia's ministers had agreed in principle [Reuters report] to work toward ratification of the convention defining universal children's rights [official backgrounder, PDF]. The convention has been ratified by 193 nations, making it the world's most widely ratified human rights treaty. In commemoration of the 20th anniversary [press release] of the UN’s adoption of the CRC, UNICEF released a report [text, PDF; press release] detailing the progress and challenges remaining in protecting the rights of children. Noting that the Convention is largely compliant with US laws and that the US played a significant role in drafting the treaty, Human Rights Watch [advocacy website] said Thursday that "US ratification is long over-due" and urged [press release] the president and Senate to ratify the convention.

In June, US Ambassador to the UN Susan Rice [official profile] said [AP report] that the Obama administration is seeking ways to have the US sign on to the treaty. In 1995, then-president Bill Clinton signed the CRC, but never submitted [AP report] it to be ratified by the Senate. Opponents of the CRC allege that the treaty puts US sovereignty in jeopardy and undermines parental rights [advocacy website]. Earlier this year, Obama signed [JURIST report] the UN Convention on the Rights of Persons with Disabilities (CRPD) [official website], the first international human rights treaty the US has signed in nearly a decade. The CRPD is awaiting ratification [Senate materials] in the Senate.






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Ninth Circuit upholds ruling to block advocacy intervention in Proposition 8 suit
Ximena Marinero on November 20, 2009 9:43 AM ET

[JURIST] A three-judge panel of the US Court of Appeals for the Ninth Circuit [official website] on Thursday affirmed [opinion, PDF] a lower court's denial [JURIST report] of a conservative advocacy group's motion to intervene in a challenge to Proposition 8 [text, PDF], California's constitutional amendment banning same-sex marriage [JURIST news archive]. The appeals court held that the district court did not abuse abuse its discretion by denying the motions to intervene. The Campaign for California Families (the Campaign) [advocacy website] had sought to intervene, alleging that the defending parties to the suit, Official Proponents of Proposition 8 and ProtectMarriage.com, would not adequately represent the interests of the Campaign. Judge Margaret McKeown rejected that argument:


The reality is that the Campaign and those advocating the constitutionality of Prop. 8 have identical interests—that is, to uphold Prop. 8. Any differences are rooted in style and degree, not the ultimate bottom line. Divergence of tactics and litigation strategy is not tantamount to divergence over the ultimate objective of the suit.

The Campaign alleges [AmLawDaily report] that the current defendants in the suit challenging Proposition 8 have compromised upholding the measure by conceding to facts that declare homosexuality is an immutable characteristics. The current defending parties deny those claims.

In August, a judge in the US District Court for the Northern District of California [official website] ruled that several advocacy organizations representing both sides of the issue could not intervene in the lawsuit [complaint, PDF] challenging Proposition 8. The lawsuit was filed [JURIST report] in May by former US solicitor general Ted Olson and prominent litigator David Boies [professional profiles], who were opposing counsel in Bush v. Gore [opinion], which decided the outcome of the contested 2000 US Presidential election [JURIST backgrounder]. The challenge was announced shortly after the California Supreme Court [official website] ruled [opinion, PDF; JURIST report] that state law challenges to the ban lacked merit. Proposition 8, approved by voters [JURIST report] in November, was a response to the California Supreme Court's decision last year striking down [JURIST report] a statutory ban on same-sex marriage as violating the equal protection and privacy provisions of the state constitution.





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Argentina Senate approves law to compel DNA from suspected 'Dirty War' children
Ximena Marinero on November 20, 2009 8:44 AM ET

[JURIST] The Argentine Senate [official website] on Thursday voted 57-1 to approve a law [materials, in Spanish] that authorizes the government to obtain DNA samples from individuals suspected to have been born to forced disappearance victims of the 1976-1983 "Dirty War" [GlobalSecurity backgrounder; JURIST news archive]. The law will amend Article 218 of the Criminal Penal Code to allow minimal biological samples to be taken from a person to determine biologic identity, authorizing judges to issue warrants to obtain alternate biological samples from personal effects using the least coercive methods necessary. Controversy around the law stemmed from issues of consent and right to privacy, as well as an individual's right to refuse knowledge of their biological parents. Among the supporters of the law is the association Abuelas de Plaza de Mayo [advocacy website], a group dedicated to obtaining restitution for the relatives of persons disappeared during the Pinochet dictatorship. Among the vocal opponents to the law is Ernestina Herrera de Noble, owner of the influential media group El Clarin, who has two adopted children born during the years of the Dirty War. Also on Thursday, the Argentine Senate approved [La Gaceta report, in Spanish] voted 38-20 to approve a law [materials, in Spanish] that establishes the National Genetic Information Bank as an autonomous institution under the Ministry of Science and Technology. The same Senate session also approved a law [materials, in Spanish] that will allow non governmental human rights organizations to bring suit in cases involving human rights violations or crimes against humanity, including crimes forced disappearances.

Last week, the National Chamber of Criminal Cassation enhanced [DyN report] a sentence imposed on a couple convicted of abducting children of forced disappearance victims and suppressing the child's identity, holding that these offenses constitute crimes against humanity. In August, the Supreme Court of Argentina [official website, in Spanish] ruled [JURIST report] in the case of two suspected children of disappeared persons that individuals cannot be required to submit blood samples to test whether they were abducted as children during the Pinochet regime, but that genetic material can be collected from personal effects. The case was raised by the association Abuelas de Plaza de Mayo. The association has been able to locate about 100 of the 500 children they have set out to find.






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New York high court rules same-sex spouses of state employees entitled to benefits
Brian Jackson on November 20, 2009 8:21 AM ET

[JURIST] The New York Court of Appeals [official website] on Thursday dismissed a challenge [opinion, PDF] to two policies that provide benefits to same-sex couples married outside of the state. The first policy was a 2006 decision by the Westchester County executive to extend benefits to same-sex spouses of county employees. The second policy was a 2006 decision [memorandum, PDF] by the president of the New York Civil Service Commission, mandating an extension of full benefits to all spouses of state employees enrolled in the New York State Health Insurance Plan. Prior to that decision, extension of benefits to same-sex spouses was at the discretion of the individual state agencies. In explaining the court's decision to affirm the Appellate Division's dismissal, Judge Eugene Pigott Jr. stated that in regards to the Westchester policy, the plaintiffs failed to provide evidence of specific harms resulting from the policy, relying instead on, "bare legal conclusions with no factual specificity." In regards to the State Civil Service Commission policy, Pigott noted that under sections 161 and 164 of the New York Civil Service Laws [legislative materials], the commission president is authorized to establish a health insurance plan for state officers and their dependents, and that the president has discretion to define the scope of dependents for purposes of benefits. In a concurring opinion joined by three others, Judge Carmen Ciparick stated that she would have simply affirmed the dismissal on the grounds that, "same-sex marriages, valid where performed, are entitled to full legal recognition in New York under our State's longstanding marriage recognition rule."

Currently, New York does not permit same-sex marriages [JURIST news archive], but in April, Governor David Patterson announced legislation [JURIST report] that would allow same-sex couples to be married in the state. That legislation was approved [JURIST report] by the state assembly in May, and a senate vote is expected before the end of the year [NYT report]. Patterson had previously issued an order to all state agencies in 2008 to recognize same-sex marriages, citing a New York Appellate Division ruling [JURIST reports] that same-sex marriages performed out of state are entitled to recognition in New York.






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Somalia, Afghanistan ranked most corrupt countries in annual survey
Jaclyn Belczyk on November 20, 2009 7:32 AM ET

[JURIST] The conflict-ravaged nations of Somalia, Afghanistan, Myanmar, Sudan, and Iraq rank among the world's most corrupt, according to the 2009 Corruption Perceptions Index (CPI) [text; press release] prepared by Transparency International (TI) [advocacy website]. The index, released Tuesday, ranked 180 countries based on observations by businesspeople and analysts, giving each a score between 0 and 10. Somalia had the lowest score of 1.1, while Afghanistan scored 1.3, Myanmar scored 1.4, and Sudan and Iraq tied at 1.5. More than half of the countries surveyed had scores below 5. TI suggests that the global financial crisis may be contributing to corruption, especially in countries that lack stable governments. TI chair Huguette Labelle said:

Stemming corruption requires strong oversight by parliaments, a well performing judiciary, independent and properly resourced audit and anti-corruption agencies, vigorous law enforcement, transparency in public budgets, revenue and aid flows, as well as space for independent media and a vibrant civil society. The international community must find efficient ways to help war-torn countries to develop and sustain their own institutions.
The countries with the highest scores were New Zealand, with a 9.4 and Denmark, with a 9.3.

The 2008 CPI [text] also found Somalia, Myanmar, Iraq, Afghanistan, and Sudan at the bottom of the list, as well as Haiti. Haiti improved its score in 2009, but still remains near the bottom of the list. The 2007 and 2006 CPIs [JURIST reports] had similar findings.





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