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Legal news from Monday, August 30, 2010




Sri Lanka cabinet approves constitutional changes to remove presidential term limits
Brian Jackson on August 30, 2010 2:09 PM ET

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[JURIST] The Sri Lankan cabinet on Monday approved proposed constitutional reforms [press release] that would permit current President Mahinda Rajapaksa [official website] to seek an unlimited number of terms in office. The current number of terms for the executive, codified within Chapter VII of the Sri Lankan Constitution [materials], is limited to two. The proposed amendment now moves to the legislature, where two-thirds of Parliament [official website] will have to approve the change. The amendment is scheduled to be presented in Parliament [press release, text] on September 8, and it is widely believed that Rajapaksa enjoys enough support [Xinhua report] in that body to allow the amendment to easily pass. Critics of the president say he is abusing his power [Taiwan News report] and attempting to "create a family dynasty". The Sri Lankan Supreme Court [official website] must also review the amendment to make sure it is not inconsistent with any other portion of the constitution.

While the proposed amendment would allow Rajapaksa to make a bid for an unlimited number of terms in office, his second term has not yet begun, though he easily achieved victory [NYT report] in January elections. Rajapaksa is a consistently popular figure within Sri Lanka, primarily for his efforts in defeating the Tamil Tiger [JURIST news archive] rebels within Sri Lanka. That victory was not without cost, however, as numerous questions have been raised about the government's actions during the conflict, including the treatment of prisoners. Earlier this month, the Sri Lankan defense minister defended [JURIST report] the government's actions during the conflict. In July, UN Secretary-General Ban Ki-moon called on the Sri Lankan Government [JURIST report] to improve conditions around UN offices in Colombo after a UN announcement [JURIST report] of the formation of an international panel to investigate human rights abuses during the war resulted in days of pro-government protests [JURIST report] near UN offices.




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Congo rebel leader Bemba claims lack of funds precludes fair trial
Matt Glenn on August 30, 2010 2:07 PM ET

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[JURIST] Defense lawyers for Democratic Republic of Congo (DRC) former vice president Jean-Pierre Bemba [case materials; JURIST news archive] argued before the International Criminal Court (ICC) [official website] Monday that Bemba lacks the financial resources to ensure a fair trial over war crimes he allegedly committed in 2002 and 2003. Bemba's lawyers claim [AP report] that prosecutors have seized all of Bemba's assets and that a loan from the court's registry is insufficient to cover legal fees and other costs. The court refused to declare Bemba indigent, which would have forced the court to fund Bemba's defense. Prosecutors hope to begin Bemba's trial in October or November.

In April, Bemba's lawyers asked the court to drop the charges [JURIST report], arguing that Bremba was denied due process and the charges are illegal. In December, the ICC ordered [text, PDF] Bemba to remain in custody [JURIST report] until his trial. The ruling reversed a decision [JURIST report] issued last August ordering Bemba's conditional release. The order for release was opposed by ICC prosecutors who appealed [JURIST report] the original decision. The ICC ordered Bemba to stand trial [JURIST report] for war crimes allegedly committed in the Central African Republic (CAR) [BBC backgrounder]. Bemba was arrested [JURIST report] in Belgium in May 2008 after the ICC issued a warrant for his arrest for his actions in the CAR. He was indicted on charges of war crimes and crimes against humanity and transferred [JURIST report] to the ICC in July 2008.




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Forthcoming UN DRC report suggests genocide by Rwanda forces
Ann Riley on August 30, 2010 1:57 PM ET

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[JURIST] A forthcoming UN report claims that troops from Rwanda and allied rebels committed crimes in the Democratic Republic of Congo (DRC) [JURIST news archives] that could be classified as genocide if proven by the appropriate court, according to media reports. The draft report, first publicized by French newspaper Le Monde [media website, in French] last week, documents the extreme violence in the DRC from 1993-2003, alleging that tens of thousands of Hutus were killed by Rwandan troops [Le Monde report, in French] during the Congo civil war [GlobalSecurity backgrounder]. Following the 1994 Rwandan genocide [BBC backgrounder; JURIST news archive], in which more than 800,000 primarily Tutsi people were killed in a span of 100 days, Hutu militias and civilians fled to neighboring Congo, then known as Zaire. According to the New York Times, the report documents systematic killings [NYT report] by the Tutsi-dominated Rwandan army with the assistance of the Alliance of Democratic Forces for the Liberation of Congo (AFDL) rebel movement, which may legally amount to genocide. While Rwanda and the DRC have continually asserted that Hutu militias were attacked following the 1994 genocide, the report alleges that civilian Congolese Hutus were also the target of violence and killings. Rwandan Justice Minister Tharcisse Karagurama [official website] rejected the report [BBC report], saying that it had no basis.

In April, the Rwandan Supreme Court [official website] ruled that the plea for release by DRC rebel leader Laurent Nkunda [BBC profile; JURIST news archive] can only be heard by a military court [JURIST report]. According to Nkunda's counsel, he is being held illegally without charge. In 2009, a Rwandan court rejected [JURIST report] a similar lawsuit seeking Nkunda's release from custody. Nkunda was apprehended by Rwandan authorities last January near the DRC border after a joint DRC-Rwandan military operation to capture him and root out Rwandan Hutu rebels operating in the DRC. The DRC government called on Rwanda to extradite Nkunda to DRC where he would face charges for atrocities allegedly committed by forces under his command. In 2006, the International Court of Justice (ICJ) [official website] ruled [JURIST report] that it does not have jurisdiction over a case filed by the DRC against Rwanda on charges of aggression and human rights abuses stemming from the DRC civil war. The ICJ asserted that Rwanda has not accepted UN conventions against human rights crimes like torture and degrading behavior, and therefore the ICJ could not rule [ICJ jurisdiction rules] on the charges upon which Congo based its case. Congo filed the suit [ICJ press release] against Rwanda in 2002, alleging armed aggression, mass slaughter, rape, arbitrary detentions, systematic looting and assassinations, while asking Rwanda to withdraw its troops. Public hearings [ICJ docket; JURIST report] began in the case in 2005.




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Arizona governor asks State Department to drop immigration law from UN rights report
Brian Jackson on August 30, 2010 1:28 PM ET

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[JURIST] Arizona Governor Jan Brewer [official website] on Friday called on Secretary of State Hillary Clinton to remove any mention of Arizona [letter, PDF] and its passage of SB 1070 [JURIST news archive] from a human rights report [text, PDF; JURIST report] issued by the State Department. The report, submitted to the UN High Commissioner for Human Rights [official website] as part of a universal review, discussed the passage and current injunction of portions of SB 1070 within a section entitled, "A commitment to values in engagements across our borders." Brewer's sternly-worded letter called inclusion of any mention of SB 1070 "offensive" in light of the membership of the UN Human Rights Council (UNHRC) [official website], including Cuba and Libya. Brewer continued:
The idea of our own American government submitting the duly enacted laws of a State of the United States to 'review' by the United Nations is internationalism run amok and unconstitutional. Human rights as guaranteed by the United States and Arizona Constitutions are expressly protected in S.B. 1070 and defended vigorously by my Administration.
Brewer has asked that the paragraph mentioning SB 1070 be stricken from the report and that in its place, the report include a comparison of US immigration laws to the laws of those members of the UNHRC that will review the report. There has not been an official response from Clinton or the State Department.

Arizona's new immigration law has been the model for proposed laws in a number of other states. Earlier this month, Florida Attorney General Bill McCollum proposed a similar law for his state [JURIST report], and Virginia's Attorney General issued an opinion that police within his state may inquire as to the immigration status [JURIST report] of those whom they stop or arrest. In late July, a federal district judge enjoined many provisions of the Arizona law [JURIST report], and efforts by the state to have review of that decision expedited to the Court of Appeals for the Ninth Circuit were denied by that court [JURIST report]. The Justice Department filed its complaint in early July [JURIST report], alleging that Arizona's attempt to pass immigration laws is preempted by federal law, and thus runs afoul of the Supremacy Clause of the US Constitution.




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Iran prosecutor reportedly suspended over detainee deaths
Carrie Schimizzi on August 30, 2010 10:52 AM ET

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[JURIST] Tehran prosecutor Saeed Mortazavi has been named by multiple Iranian news sources as one of three top judicial officials who were suspended in connection with the torture deaths of three detained protesters, multiple Iranian media outlets reported [AFP report] Monday. The suspensions were announced last week [JURIST report], but the names of the officials had been withheld. According to the media reports, the other two officials are judges whose identities are still unknown. The suspension will strip Mortazavi of his judicial immunity and clear the way for his prosecution. An Iranian parliamentary inquiry had previously found that Mortazavi was responsible for the deaths [JURIST report] of Mohammad Kamrani, Amir Javadi-far and Mohsen Ruholamini, who were tortured and beaten to death at the Kahrizak detention center after being arrested during anti-government protests that followed last year's disputed presidential election [JURIST news archive].

In June, an Iranian military court sentenced two men to death [JURIST report] by hanging for the killings. Nine others were sentenced to prison terms, and one suspect was acquitted. The defendants, whose trial began [JURIST report] in March, included 11 policemen and one civilian. Observers have accused [CNN report] the Iranian government of conducting the trial as a mere political move. The Iranian government was sharply criticized by both pro-democracy leaders and government supporters for the death of the protesters. Authorities initially claimed that the three men had died from meningitis, holding that the torture accusations were the propaganda of the opposition party. This viewpoint began to shift in August when government officials spoke out [JURIST report] against the abuse of protesters detained in Iranian prisons, and Supreme Leader Ayatollah Ali Khamenei [official website] ordered the closure of Kahrizak prison as a result.




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Annan questions Kenya's ICC commitment after al-Bashir visit
Carrie Schimizzi on August 30, 2010 9:47 AM ET

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[JURIST] Former UN secretary-general Kofi Annan [official profile; JURIST news archive] on Sunday urged Kenya to reaffirm its commitment [press release] to the International Criminal Court (ICC) [official website] after it welcomed Sudanese President Omar al-Bashir [case materials; JURIST news archive] to a celebration for the country's adoption of a new constitution [JURIST report] last week. In his statement, Annan expressed his "surprise" at the presence of al-Bashir and called on Kenya to reaffirm its cooperation with the ICC. In a statement [press release] released by Kenya's Ministry of Foreign Affairs [official website], the country defended its decision to extend the invitation to al-Bashir and expressed its willingness to cooperate with the ICC:
Kenya wishes to reaffirm her commitment to co-operate with the ICC, contrary to the statements of the ICC and some UN Security Council Members, some of who have no obligation to the ICC. Indeed, in the recent past, Kenya has demonstrated good faith and co-operated fully with the ICC on the situation in Darfur thereby contributing to the overall objective of combating impunity and bringing justice to the people of Darfur. The extent of that support and assistance is well within the knowledge of ICC.
In addition to Annan's criticism, the Council of the European Union [statement, PDF] and US President Barack Obama [statement] also expressed disappointment in Kenya's decision to invite the Sudanese president, who is wanted by the ICC for war crimes and genocide.

On Friday, the ICC reported Kenya [decision, PDF; JURIST report] to the UN Security Council and the Assembly of States Parties to the Rome Statute over al-Bashir's visit. Last month, al-Bashir also visited Chad, another member state. The ICC also reported Chad [decision, PDF] Friday to the Security Council and Assembly of States Parties. In July, the Pre-Trial Chamber I of the ICC charged al-Bashir [JURIST report; JURIST news archive] with three counts of genocide [warrant, PDF] in relation to the Darfur conflict [BBC backgrounder]. The chamber found that there were reasonable grounds to conclude that Bashir had committed genocide against the Fur, Masalit and Zaghawa ethnic groups. The charges included "genocide by killing, genocide by causing serious bodily or mental harm and genocide by deliberately inflicting on each target group conditions of life calculated to bring about the group's physical destruction." The genocide charges were added to the seven counts of war crimes and crimes against humanity that were filed against Bashir [JURIST report] in March 2009. The warrant has been controversial, with Egypt, Sudan, the African Union and others calling for the proceedings against Bashir to be delayed, and African Union leaders agreeing [JURIST reports] not to cooperate with the warrant.




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Microsoft appeals patent infringement case to Supreme Court
Erin Bock on August 30, 2010 8:42 AM ET

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[JURIST] Microsoft Corporation [corporate website; JURIST news archive] on Friday asked the US Supreme Court [official website] to reconsider a ruling [cert. petition, PDF] of the US District Court for the Eastern District of Texas [official website] finding that the company committed patent infringement [JURIST report] and awarding Canadian-based software company i4i [corporate website] $290 million dollars in damages. i4i alleged that Microsoft willfully infringed on patents it held on XML technology [i4i litigation database], which Microsoft used extensively in Microsoft Word 2007 and 2003 [Reuters report]. In addition to paying $290 million in damages, Microsoft was enjoined from selling the Microsoft Word 2007 software that included the patent infringing code. The US Court of Appeals for the Federal Circuit [official website] affirmed the district court decision [JURIST report] in December and denied Microsoft's petition for rehearing in March. Microsoft has removed the contested code from its software, but alleges that the i4i patent is invalid and that the lower courts' rulings depart from Supreme Court precedent [WSJ report].

Microsoft has been a party to many legal proceedings regarding its software in recent years. In April, a Shanghai court ruled that a Chinese insurance company was liable to the software company [JURIST report] for using illegal copies of its products and ordered the insurance company to pay USD $318,000 in damages. In November, another Chinese court ruled against Microsoft in a patent infringement case [JURIST report], finding the company infringed upon the patent rights of Zhongyi Electronic by using Chinese fonts created by the company in programs such as Windows 1998, 2000, 2003 and XP when they were only authorized for use in its Windows 1995 program. In December, the European Commission (EC) [official website] dropped antitrust charges against Microsoft [JURIST report] after the company agreed to offer consumers a choice of web browsers [JURIST report]. The EC accused Microsoft of violating fair competition rules by bundling its Internet Explorer browser with its Windows operating system.




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Federal appeals court upholds decision finding no link between vaccines and autism
Erin Bock on August 30, 2010 7:15 AM ET

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[JURIST] The US Court of Appeals for the Federal Circuit [official website] on Friday affirmed [opinion, PDF] a decision issued last year by the US Court of Federal Claims [official website] finding insufficient evidence [JURIST report] to establish a link between childhood vaccines and autism in three test cases. The decision focused on the case of 15-year-old Michelle Cedillo, who received the MMR vaccine [NIH backgrounder] when she was 15 months old and was subsequently diagnosed with autism and various gastrointestinal disorders. Michelle's parents alleged that Thimerosal [FDA backgrounder], the mercury-based preservative found in Michelle's MMR vaccine, damaged her immune system, rendering her unable to defend against the measles virus contained in the vaccine, which spread throughout her body and caused her current problems. The family sought compensation under the no-fault National Vaccine Injury Compensation Program [HRSA backgrounder]. The court found petitioners were unable to establish that the MMR vaccine was a substantial factor in bringing about Michelle's injuries and that the lower court did not err in placing this burden on petitioners. The court also affirmed the lower court's finding that the Department of Health and Human Services (HHS) [official website] experts proved petitioners' laboratory results establishing the connection between the vaccines and illnesses were "severely flawed." The court also found petitioners' argument that the lower court failed to consider pertinent testimony to be "unpersuasive."

In March, the US Federal Court of Claims determined that Thimerosal did not cause childhood autism [JURIST report] in three compensation actions. The special master found that the petitioners failed to present "a scientifically sound theory" and cited evidence that was "biologically implausible." Thimerosal has also been involved in other health-related debates. In 2005, HHS officials argued that state laws prohibiting the chemical could impede efforts [JURIST report] to fight an avian flu pandemic in the event of an outbreak. Most doctors believe Thimerosal is safe and does not affect the body in the same manner as mercury found in pollutants, but activist groups disagree claiming use of the preservative can be linked to neurological diseases including autism. Officials argue that mercury-free vaccines can only be packaged in individual doses, which could pose a major problem in the event of a pandemic requiring production of large doses of vaccinations.




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