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Legal news from Thursday, December 1, 2011

UN rights chief: more than 4,000 dead in Syria conflict
Michael Haggerson on December 1, 2011 3:03 PM ET

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[JURIST] UN High Commissioner for Human Rights Navi Pillay [official profile] stated on Thursday that the death toll in Syria during the eight-month uprising [JURIST news archive] has surpassed 4,000 [video and transcript]. Pillay recommended that the UN Security Council [official website] take action and refer Syria to the International Criminal Court [official website] for an investigation into alleged crimes against humanity committed by the Syrian government. On Wednesday the Syrian National Council [official website], a civilian opposition group, agreed to coordinate resistance efforts [Hurriyet Daily News report] with the Free Syrian Army [BBC report], the main military opposition group composed of Syrian military defectors. Pillay stated that Syria has "slipped into a state of Civil War."

The Syrian government has faced numerous allegations of human rights violations since March when the first anti-government protests started. On Monday the Independent International Commission of Inquiry on Syria reported that the Syrian Arab Republic has committed numerous human rights violations [JURIST report] including torture, sexual violence, use of excessive force and violations of the right to peaceful assembly. Last week, the UN General Assembly's Human Rights Committee approved [JURIST report] a draft resolution [text, PDF] condemning the Syria's human rights violations calling for an immediate end to them. The death toll of Syrian protesters steadily increased since the beginning of the first outbreak of anti-government protests and earlier this month, the number exceeded 3,500 [JURIST report], an increase of 900 from September's number [JURIST report]. The allegations of human rights violations continued to increase as well and last month, Syria was urged [JURIST report] to allow UN human rights experts to conduct investigations into these allegations. In August, the UN High Commissioner for Human Rights Navi Pillay [official profile] recommended [JURIST report] the UN Security Council [official website] to refer Syria to the International Criminal Court (ICC) [official website] for the violence against anti-government protests after her demand [JURIST report] to the Syrian government to stop the killings of protesters in March.

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183 countries ranked in annual corruption index
Dan Taglioli on December 1, 2011 1:45 PM ET

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[JURIST] Transparency International (TI) [advocacy website] Thursday released its 2011 Corruption Perceptions Index (CPI) [report, PDF; press release], again showing some governments failing to protect citizens from corruption, be it abuse of public resources, bribery or secretive decision-making. The CPI scores 183 countries and territories from 0 (highly corrupt) to 10 (very clean) based on perceived levels of public sector corruption, using data from 17 surveys collected by independent agencies concerning bribery of public officials, kickbacks in public procurement, embezzlement of public funds, access to information, conflicts of interest and the effectiveness of any anti-corruption campaign at work in a country. New Zealand tops the list with a score of 9.5, followed by Denmark and Finland with 9.4 and Sweden with 9.3. The US again scored 7.1, ranking 24th, behind Qatar and Chile, tied for 22nd place, and ahead of France at 25th place. Greece came in 80th, tying Colombia, El Salvador, Peru, Morocco and Thailand. Most Arab Spring countries rank in the lower half of the index, scoring below 4. Transparency International Managing Director, Cobus de Swardt provided commentary:
2011 saw the movement for greater transparency take on irresistible momentum, as citizens around the world demand accountability from their governments. High-scoring countries show that over time efforts to improve transparency can, if sustained, be successful and benefit their people.
Before the Arab Spring a TI report on the region warned that nepotism, bribery and patronage were so deeply engrained in daily life that even existing anti-corruption laws had little impact. Last on the list is Somalia, ranked as the most corrupt country for the fourth year in a row and tied at 1.0 with North Korea, which this year was included in the index for the first time. Two-thirds of all ranked countries scored less than 5.

In July Dimitrios Ioannidis of Roach, Ioannidis & Megaloudis, LLC, noted TI's corruption quantification, writing that several recent cases of corrupt practices by US companies operating overseas highlights the need for greater domestic and international enforcement mechanisms [JURIST comment] to prevent such practices. Last year's CPI report noted improvements [JURIST report] over 2009's report in corruption perception in Bhutan, Chile, Ecuador, FYR Macedonia, Gambia, Haiti, Jamaica, Kuwait and Qatar, while that year Czech Republic, Greece, Hungary, Italy, Madagascar and Niger dropped in the rankings. This year TI identified Russia, Iran, France, the United Arab Emirates, Poland and Cuba as nations where improvement had been made. Conversely, Haiti, Zimbabwe, India, Saudi Arabia, Czech Republic, Ireland, Qatar and Costa Rica are nations where perceptions have deteriorated since last year. Along with Somalia, Iraq and Afghanistan have continued to bottom the list consistently, going back to CPI reports from 2008, 2007 and 2006 [JURIST reports].

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ICC deputy prosecutor to be recommended as next chief prosecutor
Dan Taglioli on December 1, 2011 12:04 PM ET

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[JURIST] Fatou Bensouda [official profile] of the Gambia, Deputy Prosecutor of the International Criminal Court (ICC) [official website], will be formally recommended Thursday to succeed Chief Prosecutor Luis Moreno-Ocampo [official profile] when his nine-year term expires next year. Liechtenstein's UN Ambassador Christian Wenaweser, current president of the Assembly of States Parties (ASP) to the Rome Statute that set up the ICC, announced Wednesday that he will recommend Bensouda as the sole candidate [Reuters report] for the position, an endorsement to be made at a meeting of ICC members at which member states are required to reach an informal consensus on one candidate. That candidate then must receive an absolute majority of the formal vote via secret ballot at a session of the 118-nation ASP on December 12 in New York. Amnesty International (AI) [advocacy website], which called for full transparency in the selection process, noted that the Rome Statute sets out clear criteria for electing a Prosecutor [press release], who "must be of high moral character and have extensive practical experience in the prosecution or trial of criminal cases." Bensouda has been Deputy Prosecutor of the ICC since 2004, and has long been considered the favorite to succeed Ocampo, as many of the ICC's cases currently focus on Africa. Additionally, Bensouda has the backing of the African Union [official website], the support of which has been critical to the ICC. If formally selected she will take office in July 2012.

In October the Search Committee for the position of the Prosecutor of the ICC [official website] submitted [JURIST report] its consensus report to the Bureau of the ASP with the shortlist of four names after interviewing eight candidates from a list of 52 potentials. There was one other African on the list, Mohamed Chande Othman of Tanzania, currently Chief Justice of the Judiciary of Tanzania [official website]. Also on the list were Andrew Cayley [official profile] of the UK, International Co-Prosecutor at the Extraordinary Chambers in the Courts of Cambodia, and Robert Petit of Canada, Counsel, Crimes Against Humanity and War Crimes [official website] Section of Canada's Department of Justice. As its first Prosecutor, Argentinian Ocampo has been widely praised for his promotion of the work of the ICC. During his tenure he has launched seven formal investigations, begun three trials and issued arrest warrants for Sudanese president [JURIST reports] Omar al-Bashir [case materials; JURIST news archive] and other military leaders wanted for human rights violations. However Ocampo has also been criticized [JURIST report] for the ICC's slow progress in achieving results, particularly in failing to bring a larger number of senior government officials to trial for various atrocities.

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Tobacco company challenges new Australia cigarette packaging law
Katherine Getty on December 1, 2011 10:52 AM ET

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[JURIST] British American Tobacco (BAT) [corporate website] brought legal action in Australia's High Court [official website] on Thursday in response [press release] to the country's new tobacco packaging laws. Two weeks ago, Parliament [official website] enacted the Tobacco Plain Packaging Bill [text], which removes descriptive colors and logos from cigarette boxes and requires a depiction of the negative effects of smoking. The law will take effect December 1, 2012. BAT argued that the new law would flood the black market with fake cigarettes and that the taxpayers would lose out on billions of dollars as a result of lost excise taxes. Scott McIntyre, a spokesman for BAT, said that the company will fight the government to preserve its rights:
Obviously we'd rather not be in a situation where we're forced to take the Government to court but unfortunately for taxpayers the Government has taken us down the legal path. [The government] will now waste millions of taxpayer's dollars on legal fees defending plain packaging even though ... there is no proof it will reduce smoking rates. As a legal company selling a legal product we have consistently said we will defend our valuable intellectual property on behalf of our shareholders as any other company would.
Health Minister Nicola Roxon [official profile] on Thursday defended the law [press release, PDF] and said that tobacco companies will have 12 months to comply with the new requirements.

This is not the first suit brought in Australia as a result of the new law. In late November, Philip Morris Asia Ltd. (PMA) [corporate website] initiated legal proceedings [JURIST report] on behalf of its Australian subsidiary Philip Morris Ltd. [corporate website]. While Australia is the first country to enact such stringent laws, tobacco packaging is an issue in the US as well. In early November a judge for the US District Court for the District of Columbia [official website] granted a temporary injunction [JURIST report] to block the implementation of new requirements imposed by the Family Smoking Prevention and Tobacco Control Act (FSPTCA) [HR 1256 text]. Additionally, four tobacco companies [JURIST report] sued the US government in August claiming that new cigarette labeling regulations violated their First Amendment rights. In 2009, US President Barack Obama signed the FSPTCA into law [JURIST report], granting the FDA certain authority to regulate tobacco products. The legislation increased warning label requirements, prohibited marketing "light cigarettes" as a healthier alternative and allowed for the regulation of cigarette ingredients.

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Tunisia military court convicts former president of torture
Matthew Pomy on December 1, 2011 10:48 AM ET

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[JURIST] A Tunisian military court on Wednesday convicted former president Zine El Abidine Ben Ali [BBC profile] in absentia on torture charges. Ben Ali and eight others were found guilty [Reuters report] of the torture of 17 military generals in connection with a 1991 coup attempt. Ben Ali was sentenced to five years in prison. This week's sentence adds to a 35-year prison sentence handed down in June after his conviction in absentia on charges of theft and illegal possession [JURIST report] of money, jewelry, drugs and weapons. Ben Ali, who remains in exile in Saudi Arabia, has denied the charges [JURIST report] against him. His most recent conviction resulted from the first trial held against a former Tunisian government official since the new democratically-elected government took power earlier this year.

Tunisia has been cracking down Ben Ali and his relatives since the ousted president fled the country amidst the protests that ended his 23-year autocratic rule. Ben Ali has claimed that he was "duped" into leaving [AFP report] the capital Tunis, according to a statement released through his lawyer, and that he was trying to get his family out of the country after assassination threats and that the plane left him in Saudi Arabia despite orders to wait for him. In February, the Tunisian Ministry of Foreign Affairs [official website] submitted a formal request to Saudi Arabian authorities to extradite Ben Ali following the filing of additional charges of money laundering and possession of unlicensed weapons. The Tunisian Constitutional Council officially announced that Ben Ali had permanently left the office of the presidency in January, after he declared a state of emergency [JURIST report] during the nationwide protests that resulted in more than 200 deaths.

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ICC opens probe into claims of mass rapes by Gaddafi loyalists
Alexandra Malatesta on December 1, 2011 9:58 AM ET

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[JURIST] A team of investigators from the International Criminal Court (ICC) [official website] arrived in Libya on Wednesday to begin an inquiry into new allegations of sex crimes committed by loyalists of former Libyan leader Muammar Gaddafi [BBC obituary; JURIST news archive]. Jane O'Toole is leading the ICC investigation into allegations that Gaddafi ordered mass rapes [Reuters report] and provided troops with sexual stimulants for the purpose of enforcing an official rape policy. According to Chief Prosecutor Luis Moreno-Ocampo [official profile], the ICC has evidence that rape was used to punish women, instill fear and subdue the population [Global Post report]. Ocampo stated his investigation is nearly finished, and the results of this investigation may be used to file additional charges against Libya's chief of intelligence, Abdullah al-Senussi [warrants], among others. It has been alleged that al-Senussi was involved in the ordering and organizing of mass rapes.

Ocampo revealed the possibility of new sex-related charges [JURIST report] in November. Also last month, Ocampo said that the ICC would allow Libya to conduct the trial of Saif al-Islam Gaddafi, Muammar Gaddafi's son. Ocampo had traveled to Libya [JURIST report] to discuss details of Saif al-Islam and al-Senussi's trials with Libyan officials and decide where they should be held. Saif al-Islam was captured by Libyan opposition forces last month after arrest warrants were issued [JURIST reports] by the ICC for him, his father and al-Senussi in June. Muammar Gaddafi was killed [JURIST report] by opposition fighters in October.

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Ukraine court begins hearing appeal of ex-PM Tymoshenko
Alexandra Malatesta on December 1, 2011 9:54 AM ET

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[JURIST] Preliminary hearings for former Ukrainian prime minister Yulia Tymoshenko [personal website; JURIST news archive] began on Thursday in the appeal of Tymoshenko's seven-year prison sentence [JURIST report]. Tymoshenko was convicted of corruption and abuse of authority while negotiating a gas contract with Russia [AP report] in 2009, and has been barred from serving public office for three years. Health issues kept Tymoshenko from appearing in court for the beginning of her appeal as she remains bedridden [UPI report]. Tymoshenko's political rival, President Viktor Yanukovych [BBC backgrounder] maintains that the charges and convictions are not political and that were he to intercede in the process to absolve Tymoshenko, it would become politicized. The European Parliament criticized the handling of Tymoshenko's case [JURIST report] in October, calling it a violation of human rights.

Tymoshenko's prosecution has been highly controversial [JURIST comment] and has drawn harsh criticism internationally. In November the Ukrainian Parliament voted against [agenda text] hearing amendments that would have effectively freed [JURIST report] Tymoshenko by fining her rather than imposing a criminal sentence for the financial crimes of which she was convicted. The EU condemned [JURIST report] her conviction as politically motivated and has indicated that it could harm Ukraine's bid for EU accession. In June, Tymoshenko filed a complaint [JURIST report] with the European Court of Human Rights alleging violations of the European Convention of Human Rights [text, PDF]. The complaint argued that the charges against Tymoshenko are politically engineered by current Yanukovych. Tymoshenko's government was dissolved in March 2010 after she narrowly lost the presidential election to Yanukovych. Tymoshenko had alleged that widespread voter fraud allowed Yanukovych to win the election. In August, the Kiev Appeals Court refused Tymoshenko's appeal of her detention for contempt charges [JURIST reports]. Tymoshenko's government was dissolved in March 2010 after she narrowly lost the presidential election to Yanukovych. Tymoshenko had alleged that widespread voter fraud allowed Yanukovych to win the election.

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FDA to appeal order blocking new tobacco warning label requirements
Jerry Votava on December 1, 2011 9:29 AM ET

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[JURIST] The Food and Drug Administration (FDA) [official website] on Tuesday filed notice that it intends to appeal [text, PDF] an injunction that blocked new graphic warning labels on cigarette packages. In early November, a judge for the US District Court for the District of Columbia [official website] temporarily blocked [JURIST report] the implementation of graphic image and textual warning labels imposed by the Family Smoking Prevention and Tobacco Control Act (FSPTCA) [HR 1256 text]. The FDA has mandated that by September 2012, all cigarette packaging shall contain new warning labels [FDA backgrounder] with graphic images of the health issues related to smoking and related textual warnings. The major cigarette manufacturers requested the injunction on the basis that the new regulations violate their First Amendment rights and burden their right to commercial speech by compelling placement of the new warning labels on the top 50 and bottom 20 percent of all packaging and advertisements. The FDA is now planning to appeal that injunction to the US Court of Appeals for the District of Columbia Circuit [official website].

New tobacco warning labels have also drawn scrutiny in Australia, where Philip Morris has filed a complaint [JURIST report] to block new graphic warning label requirements [AUS Health Dept. backgrounder] recently enacted in that country. In 2009, US President Barack Obama [official website] signed the FSPTCA into law [JURIST report], granting the FDA certain authority to regulate manufactured tobacco products. The legislation heightens warning-label requirements, prohibits marketing "light cigarettes" as a healthier alternative and allows for the regulation of cigarette ingredients. Cigarettes and other tobacco products have been subject to strict marketing regulations on both the federal and state levels.

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Supreme Court hears arguments on sentencing, government liability for emotional damages
John Paul Putney on December 1, 2011 7:09 AM ET

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[JURIST] The US Supreme Court [official website] heard oral arguments [day call, PDF] in two cases on Wednesday. In Setser v. US [transcript, PDF; JURIST report], the justices heard arguments on a federal district court's power to determine whether a federal sentence will be served consecutively or concurrently to an as-yet undischarged state sentence. The petitioner argued that under § 3584 [text] of the Sentencing Reform Act (SRA) and in the absence of an existing state sentence, the federal judge lacked authority to stipulate that the federal sentence to be served consecutively.:
[A]t the time that the Federal judge passed this sentence, he had no idea what was going to happen in either [State] case. But more importantly, with regard to the term of probation, the Federal judge had no idea whether that term was going to be revoked, whether it would be modified, or whether he would receive any sentence of—of imprisonment at all. And in making the judgment on whether those terms should run concurrently or consecutively, Your Honor, 3584(b) directs the Court to look at the factors of 3553(a) in making that determination. And it would be impossible to make that determination under 3553(a) whether the sentence is adequate to deter, whether that sentence protects the public, without knowing what that State term of imprisonment actually is.
Interestingly, the government had conceded the issue and argued on behalf of petitioner that the federal judge exceeded his authority by making the consecutive/concurrent decision in the absence of a state sentence. Rather, that decision would lie with the federal Bureau of Prisons (BOP) which would consider several factors including a recommendation from the sentencing judge. Appointed counsel arguing in support of the Fifth Circuit opinion urged that § 3584, which instructs when sentences ought or ought not be consecutive or concurrent, did not address the current situation. Therefore, the federal judiciary retained its inherent power to sentence, including discretion to make the sentence run concurrently or not. The respondent asserted, "Neither section 3584 nor any other provision of the Sentencing Reform Act even remotely approaches the clarity that Congress would use if it intended to restrict judicial sentencing in cases like Setser's." Respondent queried whether the question of consecutive-concurrent sentencing was best handled by the judge or jailor, urging that Congress did not intend to take that sentencing power away from judges in favor of BOP bureaucrats.

In Federal Aviation Administration v. Cooper [transcript, PDF; JURIST report], the justices heard arguments on whether a pilot who was convicted and fined for failing to disclose to the Federal Aviation Administration (FAA) that he had HIV, a fact which was illegally revealed by the Social Security Administration (SSA) [official websites] where Cooper sought disability based on his HIV status, can sue the federal government for mental and emotional damages for violating the Privacy Act of 1974 [5 USC § 552a]. The government argued that Congress, by specifically excluding general damages, did not provide for damages for mental and emotional distress or, at least, did not clearly waive sovereign immunity. Asserting the dichotomy of special (or economic) damages versus general damages, inclusive of damages for mental and emotional distress, the government insisted that only damages of pecuniary nature could be recovered from the government under the Privacy Act. The respondent pilot characterized the government's argument as unnecessarily introducing ambiguity into the statute which would undermine the purpose of the Act. The respondent emphasized the text of the Act:

What was authorized in the text, the substantive provision, is actual damages, not special damages. If Congress had wanted to peel off the whole piece and require only economic loss, the more common and routine term of art that is used is special damages. ... In the context of this act, ... Congress does not choose special damages as the term of what it's authorizing, and instead chooses the broader term, "actual damages."
Respondent insisted that the plain meaning of actual damages is proved damages, as opposed to presumed damages. Respondent also urged that under the government's construction of the statute, intentional and willful violations of the act, like, for example, a whistleblower the government wants to silence by leaking embarrassing details to the press as opposed to outright firing, would have no remedy because they are not out of pocket any money.

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Unprecedented Notice of Warrantless Wiretapping in a Closed Case
Ramzi Kassem
CUNY School of Law

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