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Legal news from Tuesday, May 25, 2010

Africa groups urge greater cooperation with ICC
Dwyer Arce on May 25, 2010 3:28 PM ET

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[JURIST] A collection of African civil society organizations on Monday issued a declaration [text] urging greater cooperation between the International Criminal Court (ICC) [official website] and African nations during the upcoming ICC review conference. The group of 124 organizations called on African governments to enhance their cooperation with the court and to make greater efforts in the execution of outstanding warrants. The declaration also urged member states to improve their national judicial systems in order to maintain the court's status as one of last resort, and called on states that had not ratified the Rome Statute [text], the treaty establishing the court, to do so. In explaining the purpose of the declaration and the need for greater continental cooperation with the ICC, the authoring organizations said:
We ... call on African governments to make the most of the upcoming review conference... The review conference comes at a critical time in the development of the ICC. ... [T]he court faces important challenges to implementing its mandate successfully, includ[ing] challenges in conducting court operations, such as obtaining adequate support ... [and] external attacks on the institution... The review conference offers an exceptional occasion for African governments to help advance the global fight against impunity by restating their commitment to justice for the victims of grave crimes and offering views on the development of international criminal justice and the ICC.
The Review Conference of the Rome Statute [official website] will take place in Kampala, Uganda from May 31 to June 11, 2010. During the conference, member states will consider proposed amendments [text] to the statute.

The majority of the ICC caseload has come from Africa, causing tense relations with the governments in the region. The ICC on Wednesday sent a delegation [JURIST report] from the Office of the Prosecutor [official website] to Guinea to further investigate the killing of more than 150 pro-democracy protesters in Conakry in September 2009. In March, ICC Chief Prosecutor Luis Moreno-Ocampo [official profile] submitted [JURIST report] to ICC judges the names of 20 senior political and business leaders who "bear the gravest responsibility" for the deadly violence perpetrated after Kenya's 2007 presidential election [JURIST news archive]. In March 2009, the ICC issued an arrest warrant [JURIST report] for Sudanese head of state Omar al-Bashir [ICC materials, PDF; JURIST news archive], charging him with seven counts of war crimes and crimes against humanity, but declining to charge him with genocide. The warrant was rejected [BBC report] by Bashir, and strongly denounced [Reuters report] by the chairman of the African Union (AU) [official website], Muammar al-Gaddafi [BBC profile]. Gaddafi described the warrant as a form of terrorism and raised the possibility of the withdrawal of African member states in protest.

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Obama administration seeks dismissal of Virginia health care suit
Dwyer Arce on May 25, 2010 3:03 PM ET

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[JURIST] The Obama administration on Monday filed a brief [text, PDF] urging the dismissal of a lawsuit brought by the state of Virginia challenging the constitutionality of the recently enacted health care reform law [HR 3590 text; JURIST news archive]. The suit [complaint, PDF] filed by Virginia Attorney General Kenneth Cuccinelli [official website] challenges the constitutionality of the individual mandate provision of the health care bill, which would require most Americans to purchase some form of health insurance by 2014 and directly contradicts a state law [text, PDF; JURIST report] purporting to prevent the enforcement of a federal mandate. In the brief, attorneys representing Health and Human Services Secretary Kathleen Sebelius [official website] argued that the state lacks standing to challenge the provision because it "alleges no actual or imminent injury to its own interests as a state," and went on to argue:
The Court would ... have to step beyond the proper role of the Judiciary, for Virginia does not satisfy ... standing to sue. The Commonwealth asserts it has standing to vindicate a sovereign interest in its new statute purporting to exempt Virginians from any federal requirement to purchase health insurance. A state cannot, however, manufacture its own standing to challenge a federal law by the simple expedient of passing a statute purporting to nullify it. ... Virginia itself neither has sustained a direct and concrete injury, nor is in immediate danger of such an injury. In seeking to speak on behalf of unnamed citizens, Virginia brings into a judicial setting arguments that failed in the legislative arena, where a proponent need not show immediate and concrete harm.
Additionally, the brief argued that even if Virginia had standing, the law is a constitutional exercise of congressional Commerce Clause power [Cornell LII backgrounder] under Supreme Court [official website] precedent.

The Virginia General Assembly [official website] passed the ban on a federal mandate in March. The Virginia Health Care Freedom Act was the first of its kind [WP report] passed by any state, and says that no individual shall be held liable if they refuse to sign up for health care. Earlier this month, the National Federation of Independent Businesses (NFIB) [association website], a small business lobby group, joined a lawsuit [complaint, PDF; JURIST report] challenging the health care reform law. The NFIB joined 20 states in a suit that began in March when a complaint seeking injunction and declaratory relief was filed [JURIST reports] in the US District Court for the Northern District of Florida [official website]. Among the allegations in the suit are violations of Article I and the Tenth Amendment of the Constitution [text], committed by levying a tax without regard to census data, property, or profession, and for invading the the sovereignty of the states. The plaintiffs also assert that the law should not be upheld under the Commerce Clause. Also in May, the US Department of Justice [official website] filed [JURIST report] a response [brief text] to a lawsuit [complaint, PDF] challenging the health care law filed in March by the Thomas More Law Center [advocacy website] on the same day President Barack Obama signed the bill into law [JURIST report].

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Pakistan high court rejects appeal to jail Mumbai attack suspect
Sarah Miley on May 25, 2010 1:51 PM ET

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[JURIST] Pakistan's Supreme Court [official website] ruled Tuesday that a Pakistani cleric accused by India of plotting the 2008 Mumbai terror attacks [JURIST news archive] cannot be jailed due to lack of evidence. Hafiz Muhammad Saeed [Global Jihad profile] is the head of fundamentalist terrorist group Lashkar-e-Taiba (LeT) [CFR backgrounder], which was allegedly behind the attacks. Pakistan put Saeed under virtual house arrest [JURIST report] one month after the onslaught, where he remained except for a three-month period last summer, but the Lahore High Court (LHC) [official website] ordered his release [JURIST report] in October after finding insufficient evidence to link him to the Mumbai attacks or al Qaeda [JURIST news archive]. The Supreme Court's ruling could strain the already fragile relationship between India and Pakistan, which had recently begun peace talks.

The charges against Saeed had been filed under the Pakistani Anti-Terrorism Act [text] and were related to speeches Saeed gave while visiting Faisalabad last year. It is claimed that he discussed [Times of India report] the significance of Jihad and asked for funding for his charity Jamaat-ud-Dawa (JuD), which is believed to be a front for the LeT. Saeed's lawyer successfully argued that JuD was not a banned group. In September, Pakistan Interior Minister Rehman Malik announced that his government would indict seven suspects [JURIST report] for their role in the attacks, also requesting further evidence from India that Saeed was involved in planning the attacks. Mumbai has suffered a number of terrorist attacks allegedly linked to the LeT in recent years, leading the government to consider controversial terrorism laws and to institute special courts [JURIST reports] to try suspects.

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Thailand court charges ousted PM with terrorism
Sarah Miley on May 25, 2010 12:03 PM ET

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[JURIST] A criminal court in Thailand issued an arrest warrant on Tuesday for ousted [JURIST report] prime minister Thaksin Shinawatra [BBC profile; JURIST news archive] on charges of terrorism. Thaksin is accused of involvement in the the recent political violence [JURIST news archive] in Bangkok, which left more than 80 dead and more than 1,000 injured. Thaksin has been seen as the figurehead of the pro-democracy protesters, United Front for Democracy Against Dictatorship [party website, in Thai], also known as red shirts [BBC backgrounder]. The red shirts' protests in the capital's central commercial district paralyzed the country for the past two months, and Thaksin has been repeatedly accused of organizing and financing the campaign. The former prime minster was removed from power in 2006 by a military coup and has been living abroad in Cambodia where the government has refused to extradite [JURIST report] him to Thailand for criminal prosecution. The Thai government hopes that the official charge of terrorism will make foreign governments more malleable in their extradition policies.

The Thai government's response to the recent conflict in Bangkok has been criticized by international human rights organizations. Last week, Human Rights Watch (HRW) [advocacy website] expressed concern [JURIST report] about the treatment of anti-government protesters detained during the Bangkok demonstrations. The organization chided the Thai government for enacting a "draconian" emergency decree giving Thai security forces broad power to arrest individuals without formal charges and hold them in secret detention. The decree, which lacks judicial oversight, also prevents detainees from having access to legal counsel or family members. Earlier this month, a Thai court sentenced 27 protesters to six months in prison for violating the emergency decree. Under the strict security law [JURIST report] adopted in anticipation of the protests, the red shirts initially faced up to a year in prison, but their confessions allowed the district court to commute their sentences [AFP report]. During their protests, the red shirts demanded that Prime Minster Vejjajiva Abhisit resign and called for new elections. The Thai government implemented a curfew [JURIST report] in Bangkok and other areas of the country last week in response to violence that erupted when the leader of the red shirts announced an end to the protests. The curfew remains in effect as the government tries to maintain order.

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White House backs amendment to 'Don't Ask Don't Tell' repeal legislation
Dwyer Arce on May 25, 2010 11:39 AM ET

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[JURIST] The Obama administration on Monday backed a proposal that would prevent a repeal of the military's "Don't Ask Don't Tell" policy [10 USC s. 654; JURIST news archive] from taking effect until the completion of a comprehensive review of the repeal's effects. The amendment to the Military Readiness Enhancement Act of 2010 [texts, PDF] would prevent the repeal from taking effect until the Department of Defense [official website] completes a review to determine what effects the repeal would have on military effectiveness, soldier retention, and family readiness. In order for the repeal to take effect after the review's completion, the president, secretary of defense, and chairman of the joint chiefs of staff must sign and transmit to congressional defense committees a certification stating that the review has been considered and the recommended policy changes have been implemented. In the letter [text, PDF] sent to the chief sponsors of the legislation expressing the administration's support of the amended legislation, Office of Management and Budget Director Peter Orszag [official profile] said:
the Administration is of the view that the proposed amendment meets the concerns raised by the Secretary of Defense and the Chairman of the Joint Chiefs of Staff. The proposed amendment will ... ensure that the implementation of the repeal is consistent with standards of military readiness, effectiveness, unit cohesion, recruiting and retention. [S]uch an approach recognizes the critical need to allow our military and their families the full opportunity to inform and shape the implementation process.
Defense Secretary Robert Gates [official profile] had initially urged Congress to delay repealing the ban until the completion of the review, but has backed the amended repeal legislation [POLITICO report]. A CNN poll [results, PDF] released Tuesday found that 78 percent of American adults believe that homosexuals should be able to serve openly in the military. A vote on the proposed legislation is expected as early as this week.

In March, Gates announced changes to the enforcement [JURIST report] of the "Don't Ask Don't Tell" policy to make it more difficult to expel openly gay service members from the military. Also in March, Senator Joe Lieberman (I-CT) introduced the Military Readiness Enhancement Act of 2010 to the Senate [official websites]. The repeal of the controversial "Don't Ask, Don't Tell" policy has been an important issue for President Barack Obama since he took office, and its inclusion in the State of Union Address [JURIST report] reaffirmed it as a top priority for the administration. In January, legal advisers for Chairman of the Joint Chiefs of Staff Adm. Mike Mullen [official profile], suggested that he delay any internal efforts [JURIST report] to repeal the policy until 2011.

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Dutch court begins Europe's first Somali pirate trial
Sarah Miley on May 25, 2010 10:30 AM ET

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[JURIST] The Netherlands District Court of Rotterdam [official website, in Dutch] on Tuesday commenced [press release, in Danish] the first European trial of Somali pirates [JURIST news archive] under charges of "sea robbery" for hijacking a cargo ship registered in the Netherlands Antilles. The five accused Somali pirates were arrested last year during an attempt to forcibly board the cargo ship in the Gulf of Aden after a Danish navy frigate sunk the pirates' boat. One defendant wept during his testimony, claiming [AP report] that the severe poverty in Somalia had driven him to piracy. The trial is scheduled to last five days, and the judgment is scheduled to be handed down in June. If convicted, the pirates could face a maximum of 12 years in prison.

The international community is supporting actions taken against piracy. Yemen's Ministry of Defense announced last week that a Yemeni court sentenced six Somali pirates to death [JURIST report] and six additional pirates to 10-year jail sentences for the hijacking of a Yemeni oil tanker in April 2009. Earlier this month, the UN Office on Drugs and Crime (UNODC) [office website] announced that the island nation of Seychelles will create a UN-supported center [JURIST report] to prosecute suspected pirates. This will be the second such court established for the prosecution of pirates, following only Kenya. Last month, the UN Security Council approved a resolution [JURIST report] calling on member states to criminalize piracy under their domestic laws and urging Secretary-General Ban Ki-moon [official website] to consider an international tribunal for prosecuting piracy. The Security Council resolution came the same week the UN announced that a trust fund established to combat piracy will be funding five projects [UN News Centre report] aimed at piracy committed in the waters around Somalia.

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Russia ex-PM testifies Khodorkovsky arrest politically motivated
Dwyer Arce on May 25, 2010 9:58 AM ET

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[JURIST] Former Russian prime minister Mikhail Kasyanov [BBC profile] on Monday testified that former president Vladimir Putin [official website; JURIST news archive] ordered the arrest of former oil executive Mikhail Khodorkovsky [defense website; JURIST news archive] for political reasons. Testifying before the Khamovnichesky District Court, Kasyanov stated [Moscow Times report] that after questioning Putin on the subject several times, he finally indicated that Khodorkovsky had funded the Communist Party [party website, in Russian] without first getting approval to do so from the president, prompting the arrest. The left-leaning Union of Right Forces and Yabloko [party websites, in Russian] have acknowledged receiving funding from Khodorkovsky, which, according to Kasyanov, was authorized by Putin, but the Communist Party has denied ties to Khodorkovsky. Kasyanov went on to criticize [NYT report] the practice of seeking secret presidential approval for the otherwise legal funding of political parties. Kasyanov served as prime minister under Putin from 2000 to 2004, before being dismissed along with the entire cabinet, and has since become critical of Putin. Putin currently serves as prime minister under President Dmitri Medvedev [official website; BBC profile].

Last week, Khodorkovsky ended a two-day hunger strike [JURIST report] after a spokesperson for Medvedev indicated that Medvedev was familiar with a complaint Khodorkovsky made regarding the three-month extension of his detention. Also last week, Khodorkovsky sent an open letter to Russia's Supreme Court [official website, in Russian] contending that Russian courts are ignoring recent changes in the law that allow people charged with economic crimes to be released on bail pending the outcome of their trials. Khodorkovsky indicated the goal of his hunger strike had been achieved [press release], and that his intention was to change the judicial system going forward and not his current situation. Khodorkovsky and his business partner Platon Lebedev [defense website] are currently serving eight-year prison sentences after being convicted [JURIST report] in 2005 on fraud and tax evasion charges stemming from an attempt to embezzle and strip their Yukos [JURIST news archive] oil company of valuable assets. They are now charged with embezzling [JURIST report] USD $25 billion worth of oil produced by Yukos. The men have pleaded not guilty [JURIST report] to the current charges, and face up to 20 additional years in prison if convicted.

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Rights groups petition UN on behalf of Spain judge Garzon
Sarah Miley on May 25, 2010 9:29 AM ET

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[JURIST] Several international human rights and jurist organizations on Monday petitioned the UN [text, PDF] to support Spanish judge Baltasar Garzon [BBC profile; JURIST news archive] in his inquiry into human rights violations during the Spanish Civil War [LOC backgrounder] and to ask Spain to end his criminal prosecution. Garzon was suspended last week [JURIST report] by the Spanish General Council of the Judiciary (CGPJ) [official website, in Spanish] for abusing his power by opening an investigation into war crimes allegedly committed under Francisco Franco [BBC backgrounder]. He has also been formally charged [JURIST report] with abusing his power for violating Spain's 1977 amnesty laws, which bar investigation of all political crimes committed under the Franco regime. The international organizations argue [press release] that Spain's actions show an improper interference with what is supposed to be an independent judiciary, and that the investigation and interpretation of Spain's amnesty laws should be determined by judicial review and appeal:
By allowing Judge Garzon to be charged and suspended for carrying out his judicial duty to interpret the law as requiring the investigation of credible complaints of over 100,000 disappearances and executions, Spain is violating its positive legal duties arising from both domestic and international law to protect and enforce rights that are core to the implementation and enforcement of all human rights. ... The paramount duty of states to ensure and allow effective investigations of disappearances and executions has been defined by international instruments and interpreted and confirmed by national and international tribunals. ... Disappearances and executions remain in widespread use by states across the economic spectrum as a brutally effective means of neutralizing suspected opponents with absolute impunity. In the struggle between law and realpolitik, Judge Garzon has been a singular advocate for the proper universal enforcement of human rights and therefore one of the world's most effective opponents of impunity. The charges against him have effectively silenced him and will indubitably have a chilling effect on other judges called to make unpopular decisions regarding allegations of serious criminal wrongdoing by former state agents.
No trial date has been set to adjudicate the claims against Garzon, but, if convicted, he could face a suspension of up to 20 years.

Last week, the judiciary oversight committee of the CGPJ approved a request [JURIST report] by Garzon to work with the International Criminal Court (ICC) [official website]. The ICC confirmed earlier this month [press release] that they had asked Garzon to work for them as a consultant for a period of seven months in order to improve their investigative methods. The CGPJ granted Garzon's request for leave indicating there was no legal reason preventing him from working as a consultant with the ICC. Thousands gathered [JURIST report] in cities across Spain last month in support of Garzon, chanting slogans and displaying flags of the pre-war Republican government ousted by Franco. Garzon is widely known for using universal jurisdiction extensively in the past to bring several high-profile rights cases, including those against Osama bin Laden and former Chilean dictator Augusto Pinochet [JURIST news archives].

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Kenya judges rule Islamic courts unconstitutional
Sarah Miley on May 25, 2010 8:12 AM ET

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[JURIST] A Kenyan constitutional court ruled [judgment, PDF] Monday that inclusion of Islamic "Kadhi" courts [official website] in the nation's current constitution [text, PDF] is illegal and discriminatory. The Kadhi court system, which elevates Islam over the country's other religions, was deemed unconstitutional because it does not coincide with Kenya's secular mandate. The court also held that supporting Kadhi courts with public funds is a form of segregation as it promotes the development of one religion over another. The three-judge panel did not determine whether the Islamic courts should be included in the nation's new constitution, which will be put to a referendum on August 4. Kenyan Attorney General Amos Wako [official profile] has moved to challenge the court's decision, calling the ruling itself unconstitutional. The Kadhi courts, which were created for the use of Muslims in areas of family law such as inheritance, marriage, divorce, and personal status, have become a contentious issue between political and religious leaders as Kenya's struggle to develop a new constitution reaches its final stages.

Earlier this month, Wako published [JURIST report] the country's draft constitution [text, PDF], which proposes more balance of power in the government. President Mwai Kibaki [official profile], Prime Minister Raila Odinga, and Vice President Kalonzo Musyoka have all supported the proposed constitution [Daily Nation report] and have urged citizens to approve it in the public referendum. Despite the government leaders' widespread calls for cooperation and support, the proposed constitution still faces criticism, particularly from Kenyan religious figures who oppose [Daily Nation report] the draft's position on abortion, marriage, and divorce. The president's Cabinet members have encouraged the religious leaders to support the draft constitution and then pursue their goals through the political process [AP report] after the constitution is ratified. The draft includes several significant checks on presidential authority, including a requirement that presidential appointees face parliamentary confirmation and the removal of presidential appointment of judges. Members of Parliament receiving Cabinet positions will also have to relinquish their legislative seats. The changes are intended to reduce the widespread injustice throughout the country, and specifically address issues that led to violence following the 2007 presidential elections [JURIST news archive] where tens of thousands of protesters took to Kenya's streets accusing Kibaki of election fraud after early opinion polls suggested rival Odinga was in the lead.

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