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Legal news from Thursday, November 17, 2011




California high court rules Proposition 8 sponsors may defend it in court
Michael Haggerson on November 17, 2011 3:20 PM ET

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[JURIST] The California Supreme Court [official website] ruled [opinion, PDF; Perry v. Brown materials] Thursday that sponsors of Proposition 8 [text; JURIST news archive] and other ballot initiatives can defend them in court when the state refuses to do so. When the same-sex marriage ban was initially struck down last year [JURIST report] by the US District Court for the Northern District of California [official website], then-governor Arnold Schwarzenegger and former attorney general and current Governor Jerry Brown [official website], who were originally defendants in the lawsuit, refused to continue defending the measure on appeal [JURIST report]. This left defendant-intervenors Project Marriage [advocacy website] and other groups to defend the law. The US Court of Appeals for the Ninth Circuit [official website] sought guidance [JURIST report] from the California Supreme Court on whether the defendants have standing to defend the proposition when the state itself refused to do so. The California Supreme Court answered in the affirmative:
The judicial system is designed to operate through public proceedings in which adversaries litigate factual and legal issues thoroughly and vigorously. When an initiative measure is challenged in court, the integrity and effectiveness of the judicial process require that a competent and spirited defense be presented. If public officials refuse to provide that defense, the ability of the initiative proponents to intervene in the pending litigation, and to appeal an adverse judgment, is inherent in, and essential to the effective exercise of, the constitutional initiative power. To hold otherwise not only would undermine that constitutional power, it also would allow state executive branch officials to effectively annul voter-approved initiatives simply by declining to defend them, thereby permitting those officials to exceed their proper role in our state government‘s constitutional structure.
Although seemingly a setback for same-sex marriage supporters since the ruling gives same-sex marriage opponents the opportunity to argue against the district court's ruling that Proposition 8 is unconstitutional, the American Foundation for Equal Rights [advocacy website] stated that it was actually a victory because they are confident that the Ninth Circuit will uphold [press release] the district court's ruling and a victory in the largest appeals court in the country will set a huge precedent.

A judge for the US District Court for the Northern District of California [official website] in June rejected a motion by Proposition 8 supporters to vacate Judge Vaughn Walker's holding that the same-sex marriage ban is unconstitutional. In March, the Ninth Circuit denied a motion [JURIST report] filed by California Attorney General Kamala Harris [official website] to lift the stay order [JURIST report] prohibiting gay couples from marrying while the appeal is pending. The Ninth Circuit heard oral arguments [video; JURIST report] in Perry v. Brown [case materials] at the end of 2010. The hearing was divided into two one-hour sessions, with the first section focusing on the issue of standing, and the second focusing on Proposition 8's constitutionality.




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ICTY issues arrest warrant for former spokesperson
Dan Taglioli on November 17, 2011 12:58 PM ET

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[JURIST] The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] Wednesday issued an arrest warrant [order, PDF; press release] for former spokesperson Florence Hartmann [BBC profile; ICTY materials, PDF] for nonpayment of a €7,000 fine imposed for a contempt of court conviction. A five-judge appeals panel reordered the fine imposed on Hartmann, a French national, and then converted the fine into a seven-day prison sentence [UN News Centre report]. The court then "directed and authorized" France to search for, arrest and detain Hartmann and surrender her to the tribunal, which is based in The Hague in the Netherlands. Hartmann's conviction was upheld on appeal [JURIST report] in July of this year, after which the court ordered her to pay her fine in two installments of €3,500 each by mid-August and mid-September, respectively. Hartmann subsequently wrote to the tribunal saying she is indigent and unable to pay her fine. She claimed that her supporters had deposited the funds to pay the fine in a French bank account, but the tribunal's finance department stated it had yet to receive either installment and, deeming the fine to have not been paid, the appeals chamber decided to convert the fine into a prison term. Hartmann formerly served as the official spokesperson for chief ICTY prosecutor Carla del Ponte [BBC profile].

In 2009 a specially appointed chamber convicted Hartmann of two counts of contempt JURIST report] for allegedly disclosing protected information of appellate chamber decisions from the trial of former Serbian president Slobodan Milosevic [JURIST news archive] in a book and an article she wrote in 2007 and 2008. The original trial began in June 2009, Hartmann having been formally charged [JURIST reports] the previous August. At an initial appearance, Hartmann did not enter a plea [JURIST report] and a plea of not guilty was entered on her behalf. Before being indicted, Hartmann drew media attention by repeating allegations [JURIST report] that former US president Bill Clinton and former French president Jacques Chirac had planned a campaign [JURIST report] to capture Radovan Karadzic [BBC profile; JURIST news archive] but later backed down following a change in policy. Hartmann has also said that Russia aided in moving Karadzic to safety in Belarus, and alleged that the West helped in order to hide information about the Srebrenica massacre [BBC backgrounder; JURIST news archive].




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UN humanitarian chief emphasizes need to protect civilians in conflict zones
Katherine Getty on November 17, 2011 12:31 PM ET

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[JURIST] The UN Under-Secretary for Humanitarian Affairs [official website] stressed Thursday that parties in conflict have a duty to protect non-combatants [UN News Centre report] under international law. Valerie Amos [official profile] highlighted conflicts in Somalia, Sudan and Yemen [BBC backgrounders] as examples of countries where civilians are being targeted. In Somalia, Somalis and Kenyans are engaged in battle to push out the al-Shabaab rebels after they invaded South Somalia in mid-October. Amos said that the conflict would lead to internal displacement as civilians begin planting their crops. Sudan is waging a civil war of its own, in its battle with South Sudan [BBC backgrounder], which gained independence [JURIST report] in early July. Amos highlighted the need to protect the millions of people who cross the border between the two countries, as they muddle through post-secession issues. For the last 10 months the Yemeni people have been trying to oust President Ali Abdullah Saleh [official website]. The deadly clashes between rebels and governmental forces have left many dead and cut off civilian access to necessary public services, including health care, according to Amos. She also mentioned the excessive use of force by Syrian authorities to quell the popular uprising, which has left more than 3,500 people dead [JURIST report], as an example of the violation of international law. Amos cited the escalation of violence as detrimental to the work of humanitarian organizations. Such organizations cannot place their people in potentially harmful situations, and the lack of personnel has led to a lack of humanitarian aid.

The UN is not the only human rights group to advocate for better conditions for civilians in conflict. In July, Amnesty International [advocacy website] issued a report [text, PDF] highlighting the deterioration of human rights conditions [JURIST report] in armed conflict zones, especially for children. The UN Security Council [official website] has called for Yemen to put an end to violence [JURIST report] against peaceful protesters and urged the country to comply with international law in regards to civilians. In August, Amnesty International and Human Rights Watch [advocacy website] both claimed to have evidence that the Sudanese army committed war crimes [JURIST report] in the South Kordofan region of the country. In July the UN Security Council called for an end to the fighting [JURIST report] in the region. Amos denounced the human rights abuses [statement] in the region in June.




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Rwanda genocide tribunal convicts former mayor
Matthew Pomy on November 17, 2011 12:28 PM ET

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[JURIST] The International Criminal Tribunal for Rwanda (ICTR) [official website] convicted [judgment summary, PDF] former Rwandan mayor Gregoire Ndahimana [HJP profile] of genocide and crimes against humanity on Thursday and sentenced him to 15 years in prison. Ndahimana was charged in connection with the 1994 Rwandan Genocide [BBC backgrounder]. He was convicted [Reuters report] of the killings at Nyange parish between April 6 and April 20, 1994, by virtue of his "command responsibility." An indictment [text, PDF] against Ndahimana was issued in April 2001 for his participation in the bulldozing of the Nyange parish killing the 2,000 Tutsis hiding inside. Ndahimana was found hiding in the Democratic Republic of Congo in 2009 and was sent to the ICTR for trial [case materials], which began [JURIST report] in September 2010.

The ICTR continues to try suspects for crimes occurring during the 1994 Rwandan conflict between Hutus and Tutsis in which approximately 800,000 people were killed. In September, the court acquitted [JURIST report] two former Rwandan ministers, Casimir Bizimungu and Jerome Bicamumpaka, of genocide charges due to a lack of sufficient evidence. In June, the court convicted [JURIST report] former Rwandan army chief Augustin Bizimungu and three others. Bizimungu was sentenced to 30 years in prison while two others, Francois-Xavier Nzuwonemeye and Innocent Sagahutu, to 20 years in prison and Augustin Ndindiliyimana to time served since his arrest in 2000. 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.




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BP reparations lawsuit remanded to Mississippi state court
Dan Taglioli on November 17, 2011 12:10 PM ET

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[JURIST] A judge for the US District Court for the Southern District of Mississippi [official website] Tuesday remanded to state court [order, PDF] the Mississippi attorney general's lawsuit against the administrator of the British Petroleum (BP) [corporate website] $20 billion Deepwater Horizon oil spill [BBC backgrounder; JURIST news archive] reparations fund, the Gulf Coast Claims Facility (GCCF) [official website]. Seeking to enforce an earlier subpoena for access to reparations claims filed by coastal residents, Attorney General Jim Hood [official website] filed the lawsuit in Hinds County Chancery Court in July, claiming to be "conducting an investigation into whether [GCCF's] procedures for processing claims constitute fair and/or deceptive trade practices in violation of the Mississippi Consumer Protection Act (MCPA)." The fund's administrator, Washington lawyer Kenneth Feinberg [WP profile], had the case removed to federal court, claiming that original jurisdiction lay with that court by virtue of the Outer Continental Shelf Lands Act (OCSLA) [Cornell LII materials]. District Judge Carlton Reeves concluded that, firstly, Hood's petition does not amount to a "civil action" as the term is used in the federal removal statute, and therefore GCCF was not entitled to remove the case to federal court, and, secondly, that the operation of "developing and publishing standards for recoverable claims" from the Deepwater Horizon spill did not constitute an "operation conducted on the outer Continental Shelf" as required by OCSLA and so OCSLA cannot apply as a proper basis for federal jurisdiction. Reeves addressed only the issue of jurisdiction, and the original question of whether the subpoena at the core of Hood's petition is lawful under the MCPA is "another question altogether" to be decided in state court.

Calls for criminal and civil actions have been mounting against BP, as evidence of the oil giant's lack of proper compliance with regulations has come to light. In July the US District Court for the Eastern District of Louisiana [official website] dismissed consolidated racketeering claims against BP [JURIST report] in connection with the spill brought under the US Racketeer Influenced Corrupt Organizations (RICO) [text] act. In February, Hood asked the district court to order the GCCF to fulfill its legal obligations to aid victims of the spill and to remedy inadequate claims mechanisms [JURIST report]. The GCCF began processing claims in August 2010 following the completion of negotiations [JURIST reports] between BP and the US Department of Justice (DOJ) [official website]. Former Alabama Attorney General Troy King filed a lawsuit [JURIST report] in August of last year against BP for damages to the state's coast and economy, claiming that the oil giant has failed in its efforts to accept responsibility for the oil spill. In July 2010 a class action lawsuit [JURIST report] was filed against the company in a Louisiana state court alleging that its negligent actions led to the spill and that BP was further negligent in its oversight of the cleanup effort, resulting in volunteers falling ill due to inadequate protective equipment. One month prior, US Attorney General Eric Holder [official website] announced that the DOJ would review whether any criminal or civil laws were violated [JURIST report] by BP.




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Khmer Rouge leader declared unfit to stand trial
Alexandra Malatesta on November 17, 2011 12:01 PM ET

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[JURIST] The UN-backed Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website; JURIST news archive] on Thursday decided [text, PDF; materials] that Ieng Thirith [ECCC profile, PDF] is unfit to stand trial—just days before the war crimes trial [press release] of the surviving Khmer Rouge [BBC backgrounder; JURIST news archive] leaders is set to start. Ieng, the former minister of social affairs and the only female leader to be charged, had been charged with genocide but will be released as soon as possible [AFP report] because of her recent diagnosis of dementia caused by the 79-year-old's Alzheimer's disease. The judges found, based on the opinions of a geriatrician and four psychiatrists [JURIST report], that Ieng's incapacity to remember her own husband's name, let alone her alleged contribution to the death of up to two million people, would not serve the interests of justice:
While acknowledging the possibility that Ieng Thirith could attempt to feign the cognitive impairment in view of the consequences of a finding of incapacity, all experts considered it unlikely that Ieng Thirith could falsely present with dementia. ... [Ieng's] long-term and short-term memory are limited and ... her condition will continue to deteriorate over time. ... The Psychiatric Experts ... considered that she possessed some understanding that she was accused and of what she was accused ... [and] retained some capacity to enter a plea, to understand the charges and details of the evidence against her, and to testify. ... However, the Accused's impaired memory will likely impact upon her ability to recall events that occurred between 1975 and 1979. ... [Ieng's inability to] adequately instruct counsel and effectively participate in her own defense ... [restricts the] exercise these fundamental fair trial rights meaningfully, and in accordance with the international standards ... the Chamber has no alternative but to declare her unfit.
Prosecutors have 24 hours to appeal this decision. All four leaders have pleaded not guilty to charges including crimes against humanity, war crimes, genocide, religious persecution, homicide and torture.

The trial of the other three surviving leaders is set to begin [JURIST report] on Monday, November 21. The prosecution will have two days for opening statements followed by half a day of opening statements for the defense. The first segment of the trial is expected to conclude by December 16 for Christmas recess and will resume after the holiday break on January 9. In September, the ECCC ordered the trials be split into a series of smaller trials [JURIST report]. The ECCC said that the separation of trials will allow the tribunal to deliberate more quickly [press release] in the case [materials] against the elderly defendants. The first trial will focus on the beginning two phases of population movement and allegations of crimes against humanity, including murder, persecution not on religious grounds and forced disappearances associated with the first phases of population movement. Subsequent trials will focus on the third phase of population movement, genocide, persecution based on religious grounds and violation of the Geneva Conventions of 1949 [ICRC backgrounder].




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Senate committee votes to grant military complete control over al Qaeda suspects
Alexandra Malatesta on November 17, 2011 11:15 AM ET

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[JURIST] The Senate Armed Services Committee [official website] on Wednesday finally agreed on a controversial detainee provision of the National Defense Authorization Act for 2012 [SB 1867, PDF] that governs the handling and prosecuting of suspected al Qaeda [GlobalSecurity backgrounder] detainees. The provision, which was approved by a 26-0 vote [roll call, PDF], allows the military to have complete custody and control over terror suspects and grants authority to Attorney General Eric Holder [official website] over whether suspects should be tried in military or civilian courts. Disagreements regarding the provision have blocked its passage for months [CNN report], but were finally resolved by top Democrat and Committee Chairman Senator Carl Levin and ranking Republican Senator John McCain [official websites]. The provision was passed despite the protests of the White House [Washington Times report], which refused to sign off on the agreement because of the belief that the FBI should have unrestricted access and interrogation rights over domestically detained al Qaeda suspects, rather than the military.

The Armed Services Committee's decision, which still must survive the Senate floor and the veto power of President Barack Obama, comes on the heels of an American Civil Liberties Union (ACLU) [advocacy website] report [text, PDF] claiming that the US is diminishing its "core values" [JURIST report] with regard to various counterterrorism measures put in place during the 10 years since the 9/11 attacks [JURIST backgrounder]. To support this contention, the report cites to US policies regarding indefinite military detention for terrorism suspects, the use of torture on terrorism suspects and enemy combatants, racial and religious profiling, and domestic surveillance and wiretapping. The report posits that these policies run deeper than what is known by the American people, civil liberties continue to be violated in secret and that future violations are imminent. The ACLU acknowledged that the government has sought to cease certain questionable practices, citing President Barack Obama's directive to close the Guantanamo Bay military prison [JURIST news report], but stated that other questionable practices remain "core elements of [US] national security strategy today."




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