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Legal news from Wednesday, June 29, 2011

Bahrain king promises independent investigation of protest crimes
Maureen Cosgrove on June 29, 2011 2:32 PM ET

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[JURIST] Bahraini King Hamad bin Isa Al Khalifa [official website] announced on Wednesday that an independent commission will investigate human rights violations related to the country's pro-democracy protests. During a televised speech [transcript], Khalifa indicated that he had ordered a committee under the Chairmanship of the Deputy Prime Minister to look into abuses that took place in Bahrain [BBC profile] earlier this year. Khalifa said that the country had already begun to move forward from the violence, but maintained that the commission would seek to uncover who should be held responsible:
[W]e also need to look back and to determine exactly what happened in February and March, and to consider the reactions to those events. There were victims of the violence that took place. They must not be forgotten. There have been accusations and counter-accusations about the origins of the violence. A lack of confidence has prevailed, and disagreements have led to conflicting beliefs about events, even if such beliefs are founded only on rumors.
The commission, Khalifa said, would be composed of international human rights law experts recommended by the UN Office of the High Commissioner for Human Rights (OHCHR) [official websites] and other international human rights organizations.

Earlier this month, the OHCHR announced [press release; JURIST report] that Bahrain has agreed to permit a UN commission to investigate human rights violations related to protests. In April, human rights organizations including Human Rights Watch (HRW) and Doctors Without Borders (DWB) [advocacy websites] criticized Bahrain for rampant human rights abuses [JURIST report] related to anti-government protests. Six opposition leaders were arrested [JURIST report] in March after the government, backed by foreign troops from the Gulf Cooperation Council (GCC) [official website], violently dispersed protesters in the capital of Manana. Days earlier, Khalifa declared [JURIST report] a three-month state of emergency [decree text, in Arabic] in response to growing unrest in the island nation. The state of emergency came just days after a group of 22 Bahraini lawmakers, part of an independent pro-government bloc, called on the King to impose martial law [JURIST report] under articles 36 and 123 of the Bahraini Constitution [text, PDF]. In February, UN Secretary-General Ban Ki-moon [official profile] called for an end to violence against protesters [JURIST report] in the country, referencing attempts to quell protests sweeping across the region.

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Oman court sentences protesters to 5 years in prison
Julia Zebley on June 29, 2011 1:52 PM ET

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[JURIST] Oman's Misdemeanour Court of First Instance in Muscat sentenced 13 protesters [Times of Oman report] on Wednesday, handing five-year sentences to seven of the activists. Those seven were charged with shutting down a government organization. Six others were given fines and between three and four-month sentences for blocking roads and assaulting government employees. An additional 55 [Reuters Africa] were sentenced for vandalism the day before. The indicted were arrested after protests in February [Al-Jazeera report] where at least two were killed. Activists were reportedly demanding a higher living standard, more media access, and an end to government corruption.

The protests in Sohar were prompted by the recent wave of protests in the Middle East. UN High Commissioner for Human Rights Navi Pillay [official profile] applauded [JURIST report] the establishment of national human rights institutions (NHRIs) [official website] in Oman last year, noting their "growing effectiveness" in promoting human rights. The 2010 Failed States Index [index; FP special report] released in 2010 declared Oman one of the most stable countries in the world [JURIST report]. Oman was also praised by the US [JURIST report] in 2009 for enacting legislation to improve labor conditions. Despite Oman's reputation for being a peaceful state, protesters were sentenced to 7-20 years in prison in 2005 [JURIST report].

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Indiana to appeal ruling on planned parenthood funding
Zach Zagger on June 29, 2011 11:30 AM ET

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[JURIST] Indiana Attorney General Greg Zoeller [official website] filed a notice of appeal [text, PDF; docketing statement, PDF] Tuesday challenging a preliminary injunction blocking parts of a state law [HEA 1210, text] denying that medicaid funds go to Planned Parenthood of Indiana (PPIN) [advocacy website]. The state is challenging a decision in the US District Court for the Southern District of Indiana [official website] by Judge Tanya Walton Pratt that prevents application of the portion of the law that bans contracts between state agencies and any entity that performs abortions [JURIST news archive] or maintains a facility where abortions are performed. The appeal seeks to determine whether the preliminary injunction may continue before the case proceeds. PPIN and the American Civil Liberties Union (ACLU) [advocacy website] filed the challenge seeking a permanent injunction of the law. Zoeller noted [press release] that the state is already appealing the administrative decision made earlier this month by Donald Berwick, administrator of the Centers for Medicare & Medicaid Services (CMMS) [official website], to deny approval of the law [JURIST report]. He sent a letter to the Indiana state agency saying states have the ability to assign the qualified provider status, but the law violates § 1902(a)(23) of the Social Security Act [text] because it prevents Medicaid beneficiaries from receiving services from certain providers for reasons unrelated to the providers qualifications to provide those services.

The Obama administration has taken a stance against the Indiana law. In addition to the CMMS denial, the US Department of Justice (DOJ) [official website] filed a brief urging the court to grant an injunction [JURIST report] to stop the enforcement of the law. The ban includes disbursement of grant money, including federal Medicare funds, a provision PPIN claims is not legal under the federal Medicaid Act's "freedom of choice" provision, which allows states to disallow Medicare funding for medical providers based on deficiencies in quality of service. Before granting the preliminary injunction, the judge denied a request for a restraining order [JURIST report] to block implementation of the law.

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ICTR transfers case of former pastor to Rwanda court
Maureen Cosgrove on June 29, 2011 11:22 AM ET

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[JURIST] The International Criminal Tribunal for Rwanda (ICTR) [official website; JURIST news archive] on Tuesday transferred the case [press release] of former Rwandan pastor Jean-Bosco Uwinkindi [Hague Justice profile; case materials] to the Republic of Rwanda to be tried in the Rwandan national court system under Rule 11 bis, which authorizes the transfer of cases to appropriate national jurisdictions. Though the ICTR has never referred a case to a Rwanda court, the Referral Chamber determined that Rwanda was capable of accepting and prosecuting Uwinkindi's case:
Rwanda had made material changes in its laws and had indicated its capacity and willingness to prosecute cases referred by the ICTR adhering to internationally recognised fair trial standards enshrined in the ICTR Statute and other human rights instruments. In particular, the Chamber found that the issues which concerned previous Referral Chambers, namely the availability of witnesses and their protection, had been addressed to some degree in the intervening period.
As a precuationary measure, the Referral Chamber requested that the African Commission on Human and Peoples' Rights (ACHPR) [official website] be appointed to oversee the trial and present any issues to the ICTR President as they arise. Uwinkindi pleaded not guilty [press release] in July 2010 to charges of genocide and crimes against humanity relating to the 1994 Rwandan genocide [BBC backgrounder; JURIST news archive]. Uwinkindi was indicted [indictment, PDF] by the ICTR in 2001 and has been charged with genocide, conspiracy to commit genocide and extermination as a crime against humanity. The indictment alleges that Uwinkindi collaborated with the extremist National Republican Movement for Democracy and Development (MRND) party in order to kill Tutsis. He allegedly led a group of Hutus to look for and kill a group of Tutsi settlers and conspired with members of the militia to kill Tutsis who sought protection in the church where he was the pastor. According to the indictment, approximately 2,000 bodies were found near the church where the violence occurred. Uwinkindi had been one of the ICTR's most wanted suspects, with a $5 million reward being offered [BBC report] for information leading to his capture. He was apprehended [JURIST report] by Ugandan authorities and transferred to the ICTR in Arusha, Tanzania.

Former Chief Prosecutor of the ICTR Hassan Bubacar Jallow [JURIST news archive] filed new applications [press release; JURIST report] in November 2010 for the referral of three cases for trial in Rwanda, including those of Uwinkindi, Fulgence Kayishema [case materials; JURIST report] and Charles Sikubwabo [case materials]. In September 2010, the ICTR transferred [JURIST report] the cases of 25 suspects to Rwandan authorities. The suspects, who have been investigated but not yet indicted by the ICTR, are believed to be in hiding abroad. The transfers are a part of the strategy intended to finish [completion strategy text, PDF] the court's trial work by 2011. Rwandan Prosecutor General Martin Ngoga told the UN Security Council last year that the decisions by the ICTR not to transfer pending cases to Rwandan jurisdiction, including genocide suspects Jean-Baptiste Gatete and Yussuf Munyakazi [case materials] undermines judicial reforms [JURIST report] and hinders national reconciliation. JURIST Guest Columnist and former Managing Editor Ingrid Burke, who has personal experience at the ICTR, argues that some cases ought to be referred to Rwandan courts [JURIST op-ed], suggesting that doing so "is in the best interest of both the Rwandan judiciary's stability and the benefit of international criminal law in the future."

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Gay rights groups sue New Jersey for right to marry
Julia Zebley on June 29, 2011 10:17 AM ET

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[JURIST] Gay rights groups Lambda Legal and Garden State Equality [advocacy websites] filed a lawsuit [complaint text, PDF; case materials] on Wednesday to force the state of New Jersey to recognize and legalize same-sex marriage as opposed to its current Civil Unions Law [text, PDF]. The suit was filed in the Mercer County Superior Court of New Jersey on behalf of eight same-sex couples [press release] who have had civil unions and are seeking declaratory and injunctive relief due to continued discrimination.
Today, New Jersey shunts lesbian and gay couples into the novel and inferior status of "civil unions," while reserving civil marriage only for heterosexual couples. As the Plaintiff's experience shows, the relegation of lesbian and gay couples to civil unions, and their exclusion from civil marriage, and thereby from the legal status of "marriage" and "spouse," violates the guarantee of equal protection under Article 1, Paragraph 1 of the New Jersey Constitution of 1947. Specifically, the separate and inherently unequal statutory scheme singles out lesbian and gay men for inferior treatment on the basis of their sexual orientation and sex, and also has a profoundly stigmatizing effect on them, their children, and on other lesbian and gay men New Jerseyans. As the Supreme Court of New Jersey made clear, the equal protection guarantee forbids "the unequal dispensation of rights and benefits to committed same-sex partners." This exclusion also violates the Fourteenth Amendment to the Constitution of the United States.
Lamda Legal filed a similar suit last year [JURIST report], but the New Jersey Supreme Court [official website] declined to hear the case, holding that it must first be heard in the lower courts. In 2009, a superior court judged allowed a divorce to proceed between a same-sex couple [JURIST report], but cautioned that this would not extend to legalizing same-sex marriage in New Jersey through the courts.

Earlier this week, New Jersey Governor Chris Christie [official website] reiterated that he will not sign a gay marriage bill into law [Bloomberg report]. Christie was questioned on his reaction to New York Governor Andrew Cuomo (D) [official website] signing legislation [A8354-2011 materials] allowing same-sex couples to marry [JURIST report]. With the legislation, New York becomes the seventh US jurisdiction to allow same-sex marriage. Same-sex marriage is also legal in Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and the District of Columbia [JURIST reports]. Civil unions or domestic partnerships are currently legal in Maine, Illinois, Delaware, Hawaii, California, Wisconsin, Nevada, Oregon and Washington and await ratification in Rhode Island [JURIST reports].

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Ohio lawmakers approve bill prohibiting abortion after fetal heartbeat detection
Maureen Cosgrove on June 29, 2011 10:14 AM ET

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[JURIST] The Ohio House of Representatives [official website] voted 54-43 on Tuesday to approve legislation [HB 125] that would prohibit abortions after a fetal heartbeat is detectable, which could occur as early as six weeks into the pregnancy. The "heartbeat bill" provides no exceptions [Reuters report] for rape, incest or the life or health of the mother. The law effectively challenges the US Supreme Court [official website] decision in Roe v. Wade [opinion] which upheld a woman's right to an abortion until the fetus is "viable," usually at 22-24 weeks. Ohio Right to Life (ORTL) [advocacy website] does not support any effort to pass the bill, saying that the law would likely be deemed unconstitutional and facing a federal lawsuit would be costly to taxpayers. Marshall Pitchford, Chairman of the ORTL Board of Trustees, expressed his concerns [statement, PDF] with the bill:
As excitement and support continues to build for our legislative agenda, we are reminded of our responsibility as the Ohio Right to Life Society, the state's largest and longest serving pro life organization, to advise our elected officials of other initiatives that come before them which will have negative effects and unintended consequences. H.B. 125, the so-called "Heartbeat Bill" is one such measure which will do just that.
The House passed two other abortion-related bills on Tuesday. HB 78 [text], which was already passed [JURIST report] in the Ohio Senate [official website], bans late-term abortions after 20 weeks if a doctor determines that the fetus is viable outside the womb. HB 79 [text] prohibits qualified health plans from providing coverage for non-therapeutic abortions.

Ohio is one of many states to introduce more restrictive abortion regulations in recent months. The Iowa House of Representatives [official website] voted in June in favor of a bill [HF-1736 text, PDF] that would effectively ban abortions after 18 weeks of pregnancy {JURIST report], making it the most restrictive abortion law in the country. Last month, Planned Parenthood and the American Civil Liberties Union (ACLU) [advocacy websites] filed a lawsuit challenging a South Dakota law [JURIST reports] requiring women to seek counseling at a pregnancy center and wait three days before obtaining an abortion. Earlier that week, Minnesota Governor Mark Dayton [official website] vetoed a pair of bills [JURIST report] that restricted state funding for abortions and banned them altogether after 20 weeks. Also in May, Texas Governor Rick Perry [official website] signed into law a bill that requires women seeking an abortion to first get a sonogram [JURIST report]. Multiple states have acted to ban abortions after 20 weeks, when some studies suggest a fetus can begin feeling pain, including Missouri, Indiana, Alabama, Oklahoma, Kansas and Idaho [JURIST reports].

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Ivory Coast signs accord allowing ICC investigation to proceed
Julia Zebley on June 29, 2011 9:09 AM ET

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[JURIST] Ivory Coast [BBC backgrounder; ICC case materials] Justice Minister Jeannot Ahoussou Kouadio signed an agreement with the International Criminal Court (ICC) [official website] on Tuesday, allowing an investigation into political violence to proceed and pledging cooperation with the ICC. As the Ivory Coast is not a member state of the ICC because it is not a signatory of the Rome Statute [text, PDF], the ICC can only investigate with the Ivory Coast's express permission. Chief Prosecutor Luis Moreno-Ocampo officially requested permission from ICC judges last week [JURIST report] to begin investigation into the Ivory Coast after determining that war crimes and crimes against humanity have been committed in post-election violence [JURIST news archive] since last November. This followed a request by President Alassane Ouattara [BBC profile] for the ICC to launch an investigation [JURIST report]. Despite Ouattara requesting the investigation, the ICC will be investigating both sides of the election violence [Bloomberg report], including violence fomented by Ouattara's administration.

The Ivory Coast announced earlier this month it would establish its own commission [JURIST report] to investigate alleged crimes committed as a result of the disputed presidential elections. This investigation may take up to two years [Reuters report]. Also, an official for the UN's International Commission of Inquiry called for an investigation [JURIST report] into Ouattara and his forces' continuing attacks against supporters of ousted leader Laurent Gbagbo [BBC profile] earlier this month. In April, Human Rights Watch [advocacy website] urged Ouattara to conduct an investigation [JURIST report] into alleged atrocities carried out by his forces in its attempts to secure the presidency. According to the report, the pro-Ouattara forces, known as the Republican Forces of the Ivory Coast, killed more than 100 civilians, raped at least 20 supporters of Gbagbo and burned at least 10 villages in March. Also in April, the International Committee of the Red Cross (ICRC) [official website] reported the deaths of at least 800 civilians [JURIST report] in the Ivory Coast town of Duekoue as a result of intercommunal violence.

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Rights group sues to block Kansas abortion licensing laws
Maureen Cosgrove on June 29, 2011 9:02 AM ET

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[JURIST] The Center for Reproductive Rights (CRR) [advocacy website] on Tuesday filed a federal lawsuit [press release] challenging licensing and regulation laws for doctors who provide abortions [JURIST news archive] in Kansas. The suit [case backgrounder], filed on behalf of two doctors, alleges that regulations issued by the Kansas Department of Health [official website] were intended to shut down the only abortion providers in the state. According to the plaintiffs, the department of health issued the new regulations without giving proper notice or opportunity to be heard, imposing review and compliance deadlines in mid-June for the regulation which is set to take effect on July 1. The regulations would also force the providers to rebuild their offices to comply with the new, stringent standards. Nancy Northup, president of the CRR, condemned the Kansas regulations:
Between the rigid and unnecessary building standards and the absurd deadlines, this licensing process is a complete sham. Our clients have a long record of providing safe and high-quality OB/GYN care, including abortion services, to women over the last thirty years. These regulations have nothing to do with safety standards, and everything to do with an aggressive anti-choice government trying to shut down abortion providers.
The plaintiffs are challenging the regulations on due process grounds and further assert that the laws create an undue burden on patients seeking abortions.

The CRR filed a challenge [complaint, PDF; JURIST report] earlier this month to the newly signed Texas law requiring a sonogram be done before a woman can have an abortion. The CRR filed the lawsuit on behalf of a class of physicians who perform abortions claiming that the act is unconstitutional because it "profoundly intrudes on the practice of medicine, forces physicians to deliver ideological speech to patients, and treats women as less than fully competent adults." Also this month, the Iowa House passed [JURIST report] what would be the most restrictive law yet, effectively banning abortions after 18 weeks of pregnancy. Multiple states have acted to ban abortions after 20 weeks, when some studies suggest a fetus can begin feeling pain, including Missouri, Indiana, Alabama, Ohio, Oklahoma, Kansas and Idaho [JURIST reports].

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Bank of America to pay $8.5 billion to settle bad mortgage-backed securities claims
Zach Zagger on June 29, 2011 8:57 AM ET

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[JURIST] Bank of America (BOA) [corporate website] announced Wednesday that it has agreed to pay $8.5 billion [press release] to settle claims that it sold bad securities contributing to the housing market collapse. The securities, called first-lien residential mortgage-backed securitization, were issued by the BOA unit Countrywide Financial Corporation, which it purchased [AP report] for $4 billion in 2008. The settlement is only a small portion of the original principal balance of $424 billion covering 530 trusts with The Bank of New York Mellon as trustee. The settlement also includes an additional $5.5 billion in mortgage-related charges and BOA said it will also end up paying $2.6 billion in goodwill expenses. Shares of BOA jumped Wednesday morning before the market opened as investors were more confident that BOA's looming liability was being settled. Still, a court must approve the settlement.

BOA has recently been the target of several lawsuits over its business practices. BOA was dismissed in April from a lawsuit filed against Countrywide Financial [JURIST reports] last January, The plaintiffs argued that they had invested hundreds of millions of dollars between 2005 and 2007 believing the purchases of mortgage-backed securities to be "conservative, low-risk investments." The suit claims that Countrywide "recklessly" misrepresented the stability of the investments and failed to adhere to its stated underwriting and credit analysis procedures, leading the credit ratings of many of the securities to fall significantly. Last month, a federal court preliminarily approved [JURIST report] a class action settlement for $410 million between BOA and customers claiming they were illegally charged overdraft fees. BOA is among more than two dozen US, Canadian and European lenders named as defendants in the class action lawsuit, which consolidated claims across the country in 2009.

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Unprecedented Notice of Warrantless Wiretapping in a Closed Case
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