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Legal news from Monday, December 5, 2011

Former Ivory Coast president Gbagbo appears before ICC
Sung Un Kim on December 5, 2011 2:26 PM ET

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[JURIST] Former Ivory Coast president Laurent Gbagbo [BBC profile] appeared before the Pre-Trial Chamber III of the International Criminal Court (ICC) [official website] on Monday for an initial hearing [ICC press release]. During the hearing the court verified Gbagbo's identity and ensured that he was informed of the four charges against him, including murder, persecution, inhumane acts, and rape and other forms of sexual violence allegedly committed during last year's post-election violence [JURIST news archive] in the Ivory Coast. He was also advised of his rights under the Rome Statute [text, PDF] of the ICC. Another hearing is to be held to confirm whether there is sufficient evidence to establish a reasonable belief that the allegations may in fact be true and that Gbagbo committed these crimes. If the court determines that evidence presented is satisfactory to confirm the charges, then the matter will proceed to trial.

Gbagbo was taken into ICC custody [JURIST report] last week. National authorities arrested Gbagbo the day before, and he was brought to the Netherlands in response to a warrant of arrest [text, PDF] that was issued by the ICC judges the week before. Gbagbo is accused as an indirect co-perpetrator during the last year's post-election violence that arose when he refused to step down from office despite his defeat by the current president Alassane Ouattara [BBC profile]. Gbagbo was captured [JURIST report] in April but only after a six-month conflict that reportedly resulted in the death of at least 3,000 civilians [HRW report, PDF] and rape of more than 150 women. The investigation was set in motion after the ICC granted [JURIST report] the prosecution's request to look into the crimes in October.

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Supreme Court hears arguments on drug patents, search warrants
Jaclyn Belczyk on December 5, 2011 1:38 PM ET

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[JURIST] The US Supreme Court [official website] heard oral arguments [day call, PDF] Monday in two cases. In Caraco Pharmaceutical Laboratories, Ltd v. Novo Nordisk A/S [transcript, PDF; JURIST report], the court heard arguments on drug patents. When the Food and Drug Administration (FDA) [official website] approves a drug for multiple uses, the Hatch-Waxman Act [text, PDF] allows generic drug makers to avoid contested patent litigation by marketing generic versions of the drug solely for non-patented uses. The FDA lacks the authority and expertise needed to verify the patent information submitted by name-brand drug companies, however, so it defers to their descriptions of the scope of their patents. Such companies can therefore block the approval of generic drugs by submitting overbroad patent descriptions to the FDA, effectively extending their patents to cover non-infringing uses. To combat this problem, the Act allows [21 USC § 355(j)(5)(C)(ii)(I) text] a "counterclaim seeking an order requiring the [patent] holder to correct or delete the patent information submitted by the holder on the ground that the patent does not claim an approved method of using the drug." The US Court of Appeals for the Federal Circuit held [opinion, PDF] that the counterclaim provision effectively authorizes only "delet[ing]" improperly listed patents, but not "correct[ing]" information that misrepresents the scope of the approved uses claimed by a patent. Petitioners claim that ruling expressly invalidates longstanding FDA regulations defining "patent information," which the FDA deems "essential" to administering the Act, without seeking the agency’s views. The question before the court is whether the counterclaim provision applies when (1) there is "an approved method of using the drug" that "the patent does not claim," and (2) the brand submits "patent information" to the FDA that misstates the patent’s scope, requiring "correct[ion]."

In Messerschmidt v. Millender [transcript, PDF], the court heard arguments on whether police officers are entitled to qualified immunity [Cornell LII backgrounder] where they execute search warrants later determined invalid. The US Court of Appeals for the Ninth Circuit ruled [opinion, PDF] that the officers in this case were not entitled to qualified immunity. The Supreme Court has held in United States v. Leon and Malley v. Briggs [opinions] that officers are entitled to qualified immunity, and evidence obtained should not be suppressed, so long as the warrant is not "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." The questions before the court are (1) Under these standards, are officers entitled to qualified immunity where they obtained a facially valid warrant to search for firearms, firearm-related materials, and gang-related items in the residence of a gang member and felon who had threatened to kill his girlfriend and fired a sawed-off shotgun at her, and a district attorney approved the application, no factually on-point case law prohibited the search, and the alleged overbreadth in the warrant did not expand the scope of the search; and (2) Should the Malley/Leon standards be reconsidered or clarified in light of lower courts' inability to apply them in accordance with their purpose of deterring police misconduct, resulting in imposition of liability on officers for good faith conduct and improper exclusion of evidence in criminal cases?

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UN SG calls on leaders to answer demands for development rights
Jerry Votava on December 5, 2011 1:15 PM ET

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[JURIST] UN Secretary-General Ban Ki-moon [official profile] on Friday urged [statement] global leaders to answer calls for the right to development [press release]. Ban's comments mark the twenty-fifth anniversary of the UN Declaration on the Right to Development [text], which declared that development was an inalienable right. Ban reminded leaders to create development opportunities and noted his plans to address development at an upcoming conference:
Today we are at a decisive moment in history. As calls for change echo across the world, we cannot take refuge in silence. Leaders must respond to the demands of people who seek to build their own future. They should especially work to help women and youth enjoy lives of dignity, equality and opportunity. Global challenges and crises are interconnected. Economic, social and environmental concerns are inseparable. And human rights are integral to them all. That is why we are placing sustainable development at the top of the international agenda. Next year's United Nations Conference on Sustainable Development, Rio+20, will offer a critical opportunity to chart a course to the future we want.
The Declaration states that everyone is "entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized."

The UN has taken action to highlight areas of what it sees as fundamental human rights of the broader global community. In November, the UN Special Rapporteur on the Right to Food Olivier De Schutter [official website] urged the World Trade Organization (WTO) [official website] to make food security a top priority [JURIST report] at future meetings. In October, the UN Special Rapporteur on Violence Against Women [official website] Rashida Manjoo [official profile] urged states to fulfill their obligations [JURIST report] to prevent violence, inequality, and oppression against women. The UN General Assembly [official website] in 2010 adopted a resolution [JURIST report] declaring that access to clean and sanitized drinking water is a basic human right.

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Former Khmer Rouge leader denies guilt at Cambodia genocide tribunal
Jamie Davis on December 5, 2011 10:54 AM ET

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[JURIST] Former second-in-command of the Cambodian Khmer Rouge [BBC backgrounder] regime on Monday denied responsibility for the deaths of around 1.7 million people during the regime's rule during the 1970s at the Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website]. The trial against three former leaders of the Khmer Rouge regime, all charged with crimes against humanity, grave breaches of the Geneva Conventions of 1949 [text] and genocide, began in November [JURIST report] with opening statements. Nuon Chea [UN backgrounder], known as Brother No. 2 of the Khmer Rouge regime, proclaimed his and his fellow defendants' innocence while blaming Vietnam for the deaths with which his own regime is charged. Nuon Chea was the only one of the three defendants, including Ieng Sary and Khieu Samphan [UN backgrounders], to address the tribunal on Monday, while only one of the other three defendants is expected to testify during the trial. Four defendants were originally charged in the case, but the fourth defendant, Ieng Thirith, was found to be unfit to stand trial and ordered to be released [JURIST report].

In October, defense lawyers for Nuon Chea filed a lawsuit [JURIST report] against Prime Minister Hun Sen [BBC profile] for interfering with the UN-backed war crimes tribunal. Nuon Chea's lawyers accused the prime minister of criminally conspiring to block some of the defense witnesses from testifying [Reuters report] and consequently interfering with Nuon Chea's right to a fair trial. Because of the old age of the defendants, the tribunal decided to split the case into a series of smaller trials [JURIST report]. 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. The first segment of the trial is expected to conclude by December 16 for a recess and will resume after the break on January 9.

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ICJ rules Greece wrongfully blocked FYROM bid to join NATO over name
Jennie Ryan on December 5, 2011 10:48 AM ET

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[JURIST] The International Court of Justice (ICJ) [official website] ruled [text, PDF] on Monday that Greece wrongly blocked the Former Yugoslav Republic of Macedonia (FYROM) from joining the North Atlantic Treaty Organization (NATO) [official website] in a dispute over the use of the name "Macedonia." Greece objects to FYROM's use of "Macedonia" out of concern that the country will use the moniker to make claims to regions of Northern Greece [JURIST comment] that also are known by the name Macedonia. Greece vetoed FYROM's attempt to join NATO in 2008. The ICJ ruled 15-1 that Greece violated the Interim Accord of September 13, 1995, in which they agreed not to veto the FYROM's bid to join NATO while the issue over the FYROM's name was being negotiated. The ICJ found that Greece breached its "obligation not to object to the [FYROM]'s admission to or membership in NATO" under Article 11, paragraph 1, of the Interim Accord. The ICJ order may be a largely symbolic victory for FYROM because the court did not sanction Greece, nor did it order the country to refrain from taking similar action in the future.

Greece's Ministry of Foreign Affairs [official website, in Greek] released a statement [text] calling for the FYROM to continue negotiations in cooperation with the UN to resolve the longstanding naming conflict. The Ministry of Foreign Affairs said that Greece "will continue to negotiate in good faith [and w]e hope that the former Yugoslav Republic of Macedonia will come in these negotiations in good faith, as the issue of the name can be resolved only through negotiations under the auspices of the United Nations." In a brief statement [text] following the ruling, NATO Secretary General Anders Fogh Rasmussen [official profile] took note of the decision, but declared that the order "does not affect the decision taken by NATO Allies at the Bucharest summit in 2008 ... an invitation will be extended to the former Yugoslav Republic of Macedonia as soon as a mutually acceptable solution to the name issue has been reached."

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Supreme Court to hear qualified immunity case
Jaclyn Belczyk on December 5, 2011 10:08 AM ET

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[JURIST] The US Supreme Court [official website] granted certiorari [order list, PDF] Monday in Reichle v. Howards [docket; cert. petition, PDF], a case dealing with qualified immunity [Cornell LII backgrounder]. The petitioners are two Secret Service agents who arrested the respondent, Steven Howards, following an encounter with then-US vice president Dick Cheney. Petitioners had probable cause to arrest Howards, who in violation of 18 USC § 1001 [text] falsely denied making unsolicited physical contact with the vice president. Howards later brought a First Amendment [text] retaliatory arrest claim against petitioners. The issues before the court are (1) whether the existence of probable cause to make an arrest bars a First Amendment retaliatory arrest claim; and (2) whether arresting officers are entitled to qualified and absolute immunity where probable cause existed for respondent's arrest, the arrest comported with the Fourth Amendment [text], it was not (and is not) clearly established that Hartman v. Moore [opinion] does not apply to First Amendment retaliatory arrest claims, and the denial of immunity threatens to interfere with the decisions of Secret Service agents protecting the president and vice president. The US Court of Appeals for the Tenth Circuit ruled that the First Amendment claim is not barred and that petitioners are not entitled to qualified immunity on the First Amendment claim.

In 2006, the Supreme Court ruled [JURIST report] in Hartman v. Moore that "a plaintiff in a retaliatory-prosecution action must plead and show the absence of probable cause for pressing the underlying criminal charges." William Moore was tried and acquitted on charges that he and his company improperly influenced the search for a new Postmaster General, and he subsequently sued a group of postal inspectors, arguing that they had encouraged his prosecution in retaliation for his earlier lobbying efforts to win US Postal Service contracts. In the 5-2 ruling, the court reversed a US Court of Appeals for the District of Columbia Circuit decision [text, PDF] rejecting the inspectors' motion for summary judgment because the criminal charges against Moore were supported by probable cause.

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Seychelles president urges greater anti-piracy measures
Jennie Ryan on December 5, 2011 9:49 AM ET

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[JURIST] Seychelles President James Michel [official profile] on Monday asked world leaders to address security problems in Somalia with greater urgency on Monday in order to lower the rate of Somali pirate [JURIST news archive] attacks in the southern Indian Ocean. In letters to a number of leaders, including US President Barack Obama [official website], Michel asked for raids [AP report] on terror groups operating in Somalia and for greater support for the African Union's peacekeeping effort in the country. Michel noted that although most pirate attacks are unsuccessful, Seychelles [BBC backgrounder] yacht tourism has taken a hit, and prices for shipping from the small island nation have skyrocketed because of concern over pirate activity.

Piracy remains an issue of international concern. The Seychelles is one of the few countries that have been willing to prosecute suspected pirates. In July 2010, the Supreme Court of Seychelles convicted a group of Somali pirates [JURIST report], sentencing them to 10 years in prison. The 11 men were apprehended in the Indian Ocean following the attempted hijacking [BBC report] of a Seychelles coastguard ship in December 2009. Other countries that have attempted to prosecute pirates include the US, Germany, the Netherlands, Mauritius, Yemen, Somalia and Spain [JURIST reports].

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For more legal news check the Paper Chase Archive...


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

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