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Legal news from Wednesday, May 25, 2011

Rwanda genocide leader arrested in DRC
Julia Zebley on May 25, 2011 3:59 PM ET

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[JURIST] Rwandan genocide suspect and former Hutu militia leader Bernard Munyagishari has been arrested [press release] in the Democratic Republic of the Congo (DRC), the International Criminal Tribunal for Rwanda (ICTR) [official website] announced on Wednesday. Munyagishari was wanted on charges of genocide and several crimes against humanity for leading a militia in the mass killings and rapes of Tutsi women. Munyagishari is being transferred to the ICTR from the DRC soon, but it is unknown when he will face trial. Nine major perpetrators of the 1994 Rwandan genocide [BBC backgrounder; JURIST news archive] remain at-large.

The ICTR convicted [JURIST report] former Rwandan army chief Augustin Bizimungu and three others last week. Last December, the ICTR sentenced [JURIST report] former Rwandan Armed Forces lieutenant Ildephonse Hategekimana to life imprisonment after convicting him on charges of genocide and crimes against humanity. The court found Hategekimana guilty of three counts of genocide stemming from his involvement in the 1994 Rwandan genocide, specifically in the massacre of civilian Tutsis in the Rwandan town of Butare. Last month, the ICTR removed US lawyer and JURIST Forum [website] contributor Peter Erlinder [professional profile; JURIST news archive] from his position as an ICTR defense lawyer. The appeals chamber said the dismissal was due to Erlinder's failure to appear at a tribunal and cited Rule 46 of the ICTR Rules of Procedure and Evidence [text] which allows the court impose sanctions for lawyer's misconduct. Erlinder argues [JURIST op-ed] the dismissal was part of a wider history of institutional bias that has helped the Rwandan government label him and other defense counsel "genocide deniers" subject to official threats of arrest and even death.

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UN rights chief criticizes Australia indigenous, asylum policies
Julia Zebley on May 25, 2011 3:17 PM ET

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[JURIST] UN High Commissioner for Human Rights Navi Pillay [official profile] on Wednesday a rebuked [text] Australia for its political, rather than human rights based approach to indigenous people and asylum-seekers. Although she criticized some of the nation's practices, she had considerable praise for "a strong history of commitment to human rights at the international level, and also of course a robust system of democratic institutions." Nonetheless, she believes improvements are necessary in the realm of treatment of Aborigines and immigrants.
I welcome the National Apology and Australia's formal recognition of the UN Declaration on the Rights of Indigenous Peoples, along with the significant investment being made to improve Aboriginal and Torres Strait Islander health and education. However, I believe these efforts are being undermined by policies that fail to recognise the right to self-determination for indigenous people, which is a key element of the UN Declaration.

In my discussions with Aboriginal people, I could sense the deep hurt and pain that they have suffered because of government policies that are imposed on them. I also saw Aboriginal people making great efforts to improve their communities, but noted that their efforts are often stifled by inappropriate and inflexible policies that fail to empower the most effective, local solutions.

On the topic of asylum-seekers, Pillay described situations where refugees wait in immigration centers for months or years. She recommended greater communication with both groups, a revamp of how the Aborigine Northern Territory is handled, and for political leaders to quit "demonizing" refugees and immigrants.

In recent years, the Australian government has recognized the long history of discrimination and disadvantage among its native citizens, although its efforts have not always resulted in better conditions. Last year, Australian Prime Minister Julia Gillard [official website] announced a national referendum [JURIST report] to include Aboriginal and Torres Strait Islanders in the Australian Constitution. In August 2010, Amnesty International Australia (AIA) [advocacy website] criticized the racial discrimination [JURIST report] that exists in Australia, which, according to AIA, violates the International Convention on the Elimination of All Forms of Racial Discrimination and the UN Declaration on the Rights of Indigenous Peoples [texts]. In June, the Australian government reinstated its previously suspended Racial Discrimination Act [JURIST report] in the Northern Territory, which allows governmental authorities to regulate how welfare money is spent by the indigenous people of the country. UN special rapporteur James Anaya condemned the law, calling it problematic from a human rights point of view. In 2009, Australia endorsed [JURIST report] the aforementioned Declaration on the Rights of Indigenous People, which reversed the position held by previous Australian governments. Former prime minister Kevin Rudd championed the cause of improved living conditions for and relations with Australia's indigenous population during his term in office and offered an official apology on behalf of the federal government in February 2008 for past mistreatment to the nation's indigenous population.

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Brazil lower house passes reforms easing restrictions on deforestation
Zach Zagger on May 25, 2011 3:03 PM ET

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[JURIST] The Brazil House of Deputies [official website, in Portuguese] passed reforms to the the country's forest code Tuesday that ease restrictions on deforestation and provide amnesty for prior deforestation violations. The amended code would allow [press release, in Portuguese] small farmers to cut down trees on hilltops and along rivers, two areas that were previously protected. It would also provide farmers with amnesty for violations of the forest code prior to July 22, 2008. The amendments were mainly pushed [BBC report] by Alldo Rebelo, head of the Communist Party of Brazil [official websites, in Portuguese], who argues [press release, in Portuguese] that the restrictions are disproportionately hurting small-scale farmers. The amendments still have to be passed by the Senate, where they are expected to meet tough opposition, and not be vetoed by President Dilma Rousseff [official websites, in Portuguese] before taking effect. A group of 10 former environmental ministers sent a letter dated May 23 [text, in Portuguese] to the president urging a balanced approach to environmental regulation that will promote both the agricultural industry and environmental sustainability.

The amendments to the forest code are the latest in Brazilian initiatives that attempt to find a balance between economic development and environmental concerns over Amazon deforestation. In June 2009, then-president Luiz Inacio Lula da Silva [official profile, in Portuguese] approved a controversial measure [JURIST report] that would allow legal privatization of publicly held Amazon land. The measure was aimed at stabilizing ownership of nearly 260,000 square miles of Amazon land, the contested ownership of which has sparked violence in the region. Da Silva vetoed sections of the bill, which some critics, including legislators [letter, text], environmentalists [Greenpeace press release, in Portuguese], and state prosecutors, had argued unjustly rewarded illegal land grabs and failed to distinguish between small farmers and large corporate and absentee landlords. Earlier in June 2009, the government announced [Reuters report] a program to pay farmers in the Amazon to reforest cleared land. IN 2008, Brazil set a goal to reduce Amazon deforestation by 70 percent [BBC report] over the next 10 years.

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Federal judge upholds Ohio law limiting 'abortion pill'
Julia Zebley on May 25, 2011 11:49 AM ET

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[JURIST] A judge for the US District Court for the Southern District of Ohio [official website] on Monday upheld an Ohio law [2919.123 text] that limits the use of the "abortion pill," overturning a 2006 injunction [JURIST report]. The law requires that the use of the pill, RU-486 [FDA guidelines], conform with federal guidelines, which currently do not allow the pill to be used after seven weeks of pregnancy. Judge Susan Dlott originally placed an injunction on the law [opinion, PDF] in 2006, finding it unconstitutional due to vagueness. The case was then appealed to the US Court of Appeals for the Sixth Circuit [official website], which certified two questions [opinion, PDF] for the Ohio Supreme Court [official website]: "Does O.R.C. 2919.123 mandate that physicians in Ohio who perform abortions using mifepristone do so in compliance with the forty-nine-day gestational limit described in the FDA approval letter?" and "Does O.R.C. 2919.123 mandate that physicians in Ohio who perform abortions using mifepristone do so in compliance with the treatment protocols and dosage indications described in the drug's final printed labeling?" The Ohio Supreme Court opinion [text, PDF] found in the affirmative for both questions. Based on this ruling, Dlott found the law constitutional, rejecting the argument by Planned Parenthood of Southwest Ohio [advocacy website] that the law was still vague and forced women to choose surgical abortions. Planned Parenthood has not determined whether they will appeal the ruling.

Oklahoma has also prohibited the use of RU-486 [JURIST report]. In April, the Ohio Senate approved a bill [JURIST report] that would limit the availability of abortions after 20 weeks. That bill is pending in the House. Missouri, Indiana, Alabama and Oklahoma [JURIST reports] have each passed legislation this year which restricts the abortion procedure after 20 weeks of pregnancy. Also, earlier this year, a legislative committee in the Ohio House of Representatives advanced [Columbus Dispatch report] the "Heartbeat Bill," [HB 125 text], which would ban abortions after the point at which a fetus's heartbeat becomes detectable in the womb.

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Arizona to file lawsuit over controversial state medical marijuana law
Zach Zagger on May 25, 2011 11:46 AM ET

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[JURIST] Arizona Governor Jan Brewer (R) [official website] announced Tuesday the state is filing a federal lawsuit seeking a declaratory judgment over the legality of the state's controversial medical marijuana [JURIST news archive] law passed last November. Brewer said that it is necessary to see if the new law violates federal law [press release, PDF] in order to protect state workers charged with distributing the marijuana from federal prosecution. The lawsuit was spurred by a May 2 letter [text] sent to the Arizona Department of Health Services (ADHS) [official website] by Dennis Burke, the US Attorney for the District of Arizona, warning the department that, regardless of the new state law, marijuana remains illegal under federal law. The letter stated that the US Attorneys Office (USAO) [official website] would still prosecute those who manufacture and distribute the substance and that clear and unambiguous compliance with state law would not protect consumers from prosecution. Brewer decided to seek guidance from a federal court, saying:
For the state employees charged with administering the medical marijuana program or the Arizonans who intend to participate as consumers, it's important that we receive court guidance as to whether they are at risk for federal prosecution. As explained in a recent letter from the U.S. Attorney for Arizona, the federal government considers marijuana a controlled substance. Arizonans deserve clarity on an issue with such dire legal implications.
The ADHS Director, Will Humble, said that the department will continue to distribute [blog post] qualified patient and designated caregiver cards through its website.

Last November, Arizona voters approved [JURIST report] Proposition 203 [text, PDF] by a slim margin 50.13 to 49.87 percent, authorizing the possession of up to two-and-a-half ounces of medical marijuana or up to 12 cannabis plants. The medical marijuana is only allowed for individuals with any of a set list of medical conditions including cancer, amyotrophic lateral sclerosis and AIDS who have gotten a recommendation from their physician and have registered with the Arizona Department of Health Services. Arizona is the fifteenth state to legalize medical marijuana. In addition to Arizona, voters in California, South Dakota and Oregon also voted on a range of marijuana-based propositions during the midterm elections, all of which were rejected.

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Mozambique ex-minister embezzlement sentence reduced
Julia Zebley on May 25, 2011 11:27 AM ET

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[JURIST] Former Mozambique [BBC profile] transportation minister Antonio Munguambe's sentence for embezzlement was reduced on Tuesday from 20 years in prison [JURIST report] to four years and five months. The Supreme Court of Mozambique upheld the verdict [Journal News report, in Portuguese] against Munguambe for his involvement in the embezzlement of millions of dollars from a publicly owned company, the Mozambican Airport Company (ADM). They justified the reduced sentence by stating embezzling from a public company is a lesser offense than embezzling from the government [AFP report]. Munguambe's co-defendants in the case, the company's former chief executive, the ex-finance director, Munguambe's former chief of staff and the head of an airport catering company, also received varying reduced sentences. Munguambe and the others began to serve their sentences after the proceeding.

The trial was the largest corruption proceeding brought in Mozambique since the country achieved independence from Portugal in 1975, involving the theft of USD $1.7 million from the ADM during Munguambe's tenure in office between 2005 and 2008. The trial began [AIM report] in November 2009 as part of a larger initiative of the Mozambican government [official website, in Portuguese] to reduce corruption in the government. Transparency International [advocacy website] ranks Mozambique among the most corrupt in the world [2010 CPI report, PDF]. Munguambe was removed from office by President Armando Guebuza [BBC profile] in 2008 after violent riots in Maputo sparked by an increase in the fares for bus travel, a primary source of transportation in the capital. Soon after, he and the four others were charged by prosecutors with the theft of public funds, for the abuse of functions, for making false statements and for paying undue remunerations.

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ICTY charges Seselj with contempt over confidential information on website
Zach Zagger on May 25, 2011 10:54 AM ET

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[JURIST] The International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] on Tuesday initiated contempt proceedings against former Serb nationalist politician Vojislav Seselj [case materials; JURIST news archive], who is being tried for war crimes, for failing to remove confidential information from his website in violation of tribunal order. The Trial Chamber filed an order in lieu of an indictment [text, PDF] for contempt against Seselj because he has not complied with a May 9 order to remove three books he authored and five confidential filings [defense website] he submitted as part of his current trial and two previous contempt of court trials that reveal the identities of protected witnesses who testified against him. The contempt proceedings were brought under Rule 77(a)(ii) of the ICTY Rules of Procedure and Evidence [text, PDF], which authorizes the court to hold in contempt anyone who "knowingly and willfully interfere[s] with its administration of justice, including any person who ... discloses information relating to those proceedings in knowing violation of an order of a Chamber." This is the third time the ICTY has brought contempt charges against Seselj for failing to remove books from his website that revealed confidential information.

Earlier this month, the ICTY rejected [JURIST report] Seselj's attempt to have the charges against him dismissed, finding sufficient evidence for the trial to continue. He is charged with 14 counts of crimes against humanity and violations of the laws or customs of war. Seselj's war crimes trial, which began in 2006, resumed in early 2010, after being delayed [JURIST reports] for nearly a year over fears that witnesses were being intimidated. In February, Seselj went on trial [JURIST report] on charges that he released the names of 11 ICTY witnesses in violation of a confidentiality order. Last May, the ICTY appeals division upheld a 2009 contempt verdict [JURIST reports] against Seselj for revealing the identities of other witnesses that were supposed to remain confidential. Seselj is accused of establishing rogue paramilitary units affiliated with the SRS, which are believed to have massacred and otherwise persecuted Croats and other non-Serbs during the Balkan conflict.

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Rights groups criticize Iran detention of lawyers
Julia Zebley on May 25, 2011 9:08 AM ET

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[JURIST] Amnesty International (AI) and the International Commission of Jurists (ICJ) [advocacy websites] decried [statement] on Monday Iran's persecutions of lawyers, suggesting it is a move to repress dissent. They called for the immediate release of Nasrin Sotoudeh [JURIST news archive], Mohammad Seyfzadeh, Maedeh Ghaderi and Ghasem Sholeh Saadi, whom they claim are being held arbitrarily in violation of international law:
The recent targeting of lawyers, notably those who defend political prisoners and prisoners facing the death penalty, is part of the Iranian government's ongoing crackdown on civil society following the post-June 2009 election unrest in the country. By targeting defence lawyers, the Iranian authorities are limiting access to competent legal representation, a basic right and important fair trial guarantee.
AI and the ICJ had varying requests for other lawyers in flux in Iran, but praised Iran for the release of defense lawyer Mohammad Oliyaeifard after one year of imprisonment.

All of the lawyers mentioned are reportedly involved with Iran's human rights movement. Nasrin Sotoudeh was sentenced [JURIST report] in January to 11 years in prison. Sotoudeh has worked on several high-profile cases. She was the lawyer for Arash Rahmanipour, who was arrested for his role in the post-election protests on charges of mohareb, or being an enemy of God. Rahmanipour was executed [JURIST report] in January 2010. Sotoudeh also represented Isa Saharkhiz [Iran Press profile], a well-known press activist who was sentenced [JURIST report] to four years in prison in 2006 for publishing articles against the constitution and offending the state media. UN High Commissioner for Human Rights Navi Pillay [official profile] expressed particular concern [JURIST report] for Nasrin Sotoudeh in November. Mohammad Seyfzadeh was sentenced for "forming an association ... whose aim is to harm national security" and "being a member of an association whose aim is to harm national security" due to his involvement with the Centre for Human Rights Defenders (CHRD) [advocacy website]. Maedeh Ghaderi was arrested after defending her husband, a member of the Green Movement during the 2009 presidential election protests [JURIST news archive], and has been held without trial since March. It is also unknown if her husband has received a new lawyer. Ghasem Sholeh Saadi, a former member of Parliament and potential presidential candidate, was arrested and sentenced for a year and a half for writing a letter critical of the government. After being released, he was arrested, reportedly for the same act of writing a critical letter before his imprisonment, and sentenced to another year in prison.

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Ukraine prosecutors bring more corruption charges against ex-PM Tymoshenko
Zach Zagger on May 25, 2011 8:45 AM ET

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[JURIST] The Ukraine Prosecutor General's Office (PGO) [official website, in Ukrainian] again charged former prime minister and opposition leader Yulia Tymoshenko [personal website; JURIST news archive] Tuesday in connection with alleged corruption during her time in office. She was charged under Article 365 of the Criminal Code of Ukraine [text] with abuse of office [press release, in Ukrainian] in connection with signing gas import contracts with Russia. She was given the charges when she was brought in for questioning [BBC report] by the PGO at the state capital building in Kiev. There was a small group of Tymoshenko supporters protesting outside the building. Tymoshenko denies the charges and argues that they are politically motivated. She criticized the speed at which the case was being moved forward on her website and claimed that the PGO reversed its decision to detain her under public pressure. She said:
They behaved as if everything had been decided and they were just carrying out formalities. I don't doubt that during the course of all this they reconsidered their desire to put me in jail only because of pressure from people, pressure from civil society, the media, deputies, and, I think, the international community. ... All of this has been cynically trumped-up, without any hint of the law, because they know there is no real court, and they know that the court will sign and endorse any resolution and decision they write.
The investigators argue that the 10-year gas contract deals she signed were too high, harming the economy, and that she did not have cabinet approval to sign them.

These charges are not the first brought against Tymoshenko by the PGO. In Feburary, the PGO combined two separate criminal cases [JURIST report] against her and concluded the pre-trial investigation. The combined cases against Tymoshenko include charges initiated in December for allegedly misappropriating state funds during her time as prime minister from 2007-2010 and new charges in January alleging that she abused her authority and exceeded her official duties [JURIST reports] while in office by purchasing "1000 Opel Combo" medical vans at a 20 percent mark-up. Tymoshenko said the vans were successful in providing medical services to rural villages. The current combined case against her is not the first time she has been prosecuted. Last May, prosecutors reopened a separate criminal investigation [JURIST report] into allegations that Tymoshenko attempted to bribe Supreme Court judges. Tymoshenko's government was dissolved in March 2010 after she narrowly lost the presidential election to Viktor Yanukovych [official website, in Ukrainian]. Tymoshenko had alleged that widespread voter fraud allowed Yanukovych to win the election.

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