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Legal news from Thursday, December 8, 2011

UK launches action plan to promote transgender equality
Michael Haggerson on December 8, 2011 3:28 PM ET

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[JURIST] The UK Home Office Government Equalities Office [official website] on Thursday announced the UK's first ever government action plan promoting transgender equality [report, PDF; official website]. The plan stated that there was a 14 percent rise in transgender-related hate crime between 2009 and 2010 and that only two EU member states explicitly address transgender hate crimes in their hate crime legislation. The report proposed amending Section 146 and Schedule 21 [text] of the Criminal Justice Act 2003 [materials] so that crimes motivated by hostility towards transgender individuals are considered hate crimes and that the minimum sentence for murders motivated by hostility towards transgender individuals be 30 years. This is double the current minimum sentence [BBC report]. The Ministry of Justice [official website] later clarified that the increased minimum sentence would also apply to murders motivated by hate of disabled people [press release]. The plan also calls for a government-wide appraisal of transgender rights and the special needs of transgender individuals, greater protection for the privacy of transgender individuals and greater protection for transgender students in schools. The plan stated that over 70 percent of children who express gender variant behaviors are subject to bullying in school. Equalities Minister Lynne Featherstone [official website] stated that the transgender action plan was "just the first step on this road" [video] and that she hopes that the trans community is happy with the government's efforts.

The rise of hate crimes against LGBT individuals has been an issue throughout the world. In July the Italian Chamber of Deputies [official website, in Italian] rejected legislation [JURIST report] that would have provided greater penalties for hate crimes committed against homosexuals and transsexuals. As a member of the UN Human Rights Council [official website], Italy is a party to the "Human rights, sexual orientation and gender identity" resolution [text, PDF], which was passed [JURIST report] in June. The resolution is the first to call for an end to sexuality discrimination worldwide and to recognize it as a "priority" for the UN. However, the resolution does not address any penalties for violating the act nor is it binding for members. In March, US Representative Jared Polis (D-CO) and Senator Al Franken (D-MN) [official websites] introduced legislation to protect LGBT students [JURIST report] in federally funded public elementary and high schools from bullying. In 2009, US President Barack Obama signed into law [JURIST report] a bill that contained a measure extending the definition of federal hate crimes to include crimes motivated by gender, sexual orientation, gender identity or disability.

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Malawi to review controversial anti-homosexuality law
Michael Haggerson on December 8, 2011 2:49 PM ET

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[JURIST] Malawian Justice Minister Ephraim Chiume said Thursday that President Bingu wa Mutharika has ordered the Malawi Law Commission [official websites] to review several controversial laws, including a law banning homosexual acts. Chiume stated that the review was in response to public criticism [Africa Review report]. Commentators suggest that the purpose of the review of the ban on homosexual acts is to attract US aid. On Tuesday US Secretary of State Hillary Clinton [official profile] announced that the US would use foreign assistance, international diplomacy and political asylum to promote LGBT rights internationally [JURIST report]. In addition to the ban on homosexual acts, laws which allow the government to shut down newspapers deemed to not be serving Malawi's interests, ban suits against government officials and allow police to search areas and make arrests without providing a reason will also be reviewed.

Gay rights have been a contentious issue [Economist backgrounder] in both developed and developing nations, with more than 80 countries criminalizing homosexuality. The issue is especially prevalent in Africa where over 70 percent of countries criminalize non-traditional sexual orientation, with some charges carrying the death penalty. Last week, the Nigerian Senate passed a bill making it illegal for same-sex couples to marry [JURIST report] or for an individual to aid in the marriage of same-sex couples. The bill explicitly states that marriages entered into by persons of the same gender are prohibited and will not be recognized as valid, even if the marriage certificate is obtained in a foreign country. Last month, the Ugandan High Court [official website] sentenced a man to 30 years in prison for beating to death prominent gay rights activist [JURIST report] David Kato. Enock Nsubuga confessed to the January 2011 killing, admitting to beating Kato [Reuters report] with a hammer at his home before he died on the way to the hospital. Nsubuga claimed that he attacked Kato in response to sexual advances he made. In 2010 Mutharika pardoned [JURIST report; video] a gay couple sentenced to 14 years in prison on charges of "indecent practices between males" and "unnatural offences." Although Mutharika pardoned the men based on international pressure, he nevertheless reiterated that homosexuality was "totally wrong" and against the culture and traditions of Malawi.

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Supreme Court hears arguments on biological patents, title to riverbeds
Andrea Bottorff on December 8, 2011 12:54 PM ET

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[JURIST] The US Supreme Court [official website] heard oral arguments [day call, PDF] Wednesday in two cases. In Mayo Collaborative Services v. Prometheus Laboratories, Inc. [transcript, PDF; JURIST report], the court heard arguments on the ability to patent under 35 USC § 101 [text] the body's biological reaction to different dosages of a certain type of drug. Prometheus Labs [corporate website] patented the tests doctors use for determining the appropriate dosage of drugs for treating Crohn's disease and other autoimmune diseases. Mayo Collaborative has argued that the tests look at "natural phenomenon" and that doctors violate the patents simply by mentally recognizing the correlation, regardless of what the doctors do with this knowledge. During the oral argument, petitioner Mayo Collaborative argued that the patent attempts to protect a "law of nature" instead of the "application of a law of nature," which restricts doctors' ability to make treatment judgments based on patients' reactions to drugs. Respondent Prometheus Labs argued that the courts have permitted similar patents in the past, that the current patent involves only a narrow range of drugs and that it will not prevent future improvements in the field.

In PPL Montana v. Montana [transcript, PDF], the court heard arguments on whether the proper constitutional test for determining river navigability for title purposes requires a trial court to consider whether the river was considered navigable at the time the state joined the Union or whether the court can consider new evidence based on current use. PPL Montana (PPL) [corporate website], which owns a hydroelectric power dam on the Missouri River, brought the challenge after the Supreme Court of Montana held [opinion, PDF] that the title to the riverbeds passed to Montana when it became a state in 1889 and that the riverbeds are public trust lands under Article X, Section 11 [text] under the Montana Constitution. The Supreme Court of Montana ordered PPL to pay $41 million in back rent and more in future rent for use of the riverbeds. Petitioner PPL argued that the Montana Supreme Court "deviat[ed] from well-settled principles of Federal navigability law" by failing to focus on specific river segments and considering modern instead of historical use of the river. Respondent the state of Montana replied that, under federal precedent, the state owns title to the riverbeds of navigable rivers and that the Montana Supreme Court properly applied the test for navigability in determining that the "river served as a continuous highway of commerce" at the time of statehood.

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ACLU asks Supreme Court to rule on gene patent case
Matthew Pomy on December 8, 2011 12:51 PM ET

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[JURIST] The American Civil Liberties Union (ACLU) and the Public Patent Foundation (PUBPAT) [advocacy websites] on Wednesday asked [cert. petition, PDF] the US Supreme Court [official website] to overturn a recent federal appeals court decision that upheld gene patents. The June decision [JURIST report] by the US Court of Appeals for the Federal Circuit [official website] partially overturned a district court ruling [JURIST report] and upheld the validity of gene patents that prevent non-patent holders from studying, testing or even looking at a particular gene. In a petition for writ of certiorari filed with the Supreme Court Wednesday, the ACLU claims:
The patenting of isolated DNA violates long-established Supreme Court precedent that prohibits the patenting of laws of nature, natural phenomena, products of nature, and abstract ideas. ... Patents on isolated DNA, whether small segments or whole genes, also violate the First Amendment because they block scientific inquiry into the patented DNA.
The particular genes in this case, BRCA1 and BRCA2 [NCI backgrounder], are two key genes related to breast and ovarian cancer research. Myriad Genetics and the University of Utah Research Foundation [official websites] currently hold the patents on the genes and thus hold the rights the genes and are able to set the cost of testing and prevent researchers from studying the gene without gaining permission first.

The appeals court's decision countered the position held by the Obama administration, which had submitted an amicus curie brief [text, PDF] in support of the ACLU and PUBPAT. The US Patent and Trademark Office [official website] has issued patents for genes for decades. Such patents cover nearly 2,000 human genes and genetic research companies hold patents to approximately 20 percent of the human genetic code. Supporters of the patents argue that restricting patents on human genes would decrease the amount of genetic research performed by the public sector because it would no longer be profitable for companies to study human genes. Opponents claim that these restrictions often prevent patients from receiving proper medical care and complicate the research process in a way that deters potential researchers.

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UN rights representative calls for peace in Colombia
Dan Taglioli on December 8, 2011 12:38 PM ET

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[JURIST] The representative to Colombia for the UN Office of the High Commissioner for Human Rights (OHCHR) [official website] Thursday reiterated his call for a peaceful solution to the country's ongoing armed conflict. Christian Salazar made his remarks at a press conference following an announcement by the Revolutionary Armed Forces of Colombia (FARC) [GlobalSecurity backgrounder] stating plans to move forward with the unilateral release of hostages currently being held by the paramilitary rebels. Last month a military offensive led to the deaths of four FARC hostages who were killed by their captors during the fighting, but Salazar stated he believed FARC's plan to release other hostages signaled a new phase of hostage liberation that might help lead both sides to a peaceful resolution to the ongoing conflict. However Salazar recognized at the press conference that at this point even talking about the armed conflict in Colombia was "extremely sensitive." To that end Salazar also praised the actions of Colombian President Juan Manuel Santos [official website, in Spanish], who has maintained an open line of dialogue between FARC and the Colombian government, which Salazar held as important to preventing a longterm "spiral of violence" in the country. The rebels announced their plans [letter, PDF, in Spanish] for the upcoming hostage release in a missive to former Colombian Senator Piedad Cordoba earlier this month.

In June Santos signed the Victims' and Land Restitution Law [Senate backgrounder, in Spanish], legislation that had been created to compensate victims of the country's armed conflict and had been approved by the Senate [JURIST reports] a month earlier. The law seeks to compensate millions of individuals by providing damages to relatives of those killed during the armed conflict, which has spanned over 40 years, as well as help to return land stolen throughout the conflict to its rightful owners. The US federal court system has heard several lawsuits seeking compensation for victims of Colombian violence. In February, the US Court of Appeals for the Eleventh Circuit [official website] revived a wrongful death lawsuit [JURIST report] brought against Drummond Company [corporate website] in which it is alleged that the company successfully hired the paramilitary United Self-Defense Forces of Colombia (AUC) [CFR backgrounder] to break up a new Drummond union and murder its leaders. In April 2010 victims of paramilitary violence in Colombia filed suit against Chiquita Brand International [JURIST report] in the US District Court for the Southern District of Florida. The plaintiffs were 242 Colombians who alleged that they had been seriously injured or had family members killed by the AUC, which received funding from Chiquita. In 2007, Chiquita was fined $25 million [JURIST report] after it admitted to making payments of around $1.7 million from 1997 to 2004 to the AUC.

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CIA operated secret prison in Romania: AP report
Katherine Getty on December 8, 2011 12:11 PM ET

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[JURIST] The US Central Intelligence Agency (CIA) [official website] operated a secret prison [AP report] outside the capital of Romania, the Associated Press (AP) [media website] alleged on Thursday. A joint investigation between the AP and a German public television company, ARD Panorama [media website, in German], reportedly uncovered the black site, whose existence has been rumored but never confirmed. The site is claimed to have been part of the CIA's secret prison [JURIST news archive] network that operated overseas and were used to house and interrogate terrorists. The investigation found that high-profile terrorists including Khalid Sheik Mohammad [JURIST news archive] were kept there until they were transported to the Guantanamo Bay prison facility in Cuba. All of the prisons were shut down in 2006, and the program was shut down in 2009. The Romanian government denied any activity in the building by the American government, while the CIA declined to discuss the detention program. The investigation found that once detainees were placed in the prisons, they endured sleep deprivation and other harsh interrogation techniques, but waterboarding was not allowed in Romania.

This is not the first discovery of CIA-run secret prisons. Investigations have previously uncovered locations in Lithuania and Poland. The Lithuanian National Security Committee concluded that the Lithuanian State Security Department provided the CIA with two secret facilities [JURIST report] in December 2009. In 2007 it was discovered that the CIA had prisons in Romania and Poland [JURIST report], but the governments would never confirm or deny the allegations. In 2010 Poland requested US assistance in their investigation of the alleged prison, but the US government refused to cooperate. The European Parliament [official website] approved a report condemning member states for cooperating with the (CIA) in operating illegal secret prisons and extraordinary rendition flights in Europe in 2007. This action came in the wake of a 2006 report by the Legal Affairs Committee of the Council of Europe [official website] report that alleged that 14 European countries [JURIST report] collaborated with the CIA by taking an active or passive role in secret prisons and rendition flights.

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UN war crimes tribunals report progress to Security Council
Dan Taglioli on December 8, 2011 11:36 AM ET

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[JURIST] Top officials of the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website; JURIST news archive] and the International Criminal Tribunal for Rwanda (ICTR) [official website; JURIST news archive] told the UN Security Council [official website] Wednesday that international cooperation in tracking and arresting fugitives is vital to completion of the tribunals' mandates. This year saw the arrests of the last two remaining fugitives wanted by the ICTY, meaning none of the 161 persons indicted by the tribunal [materials] remain at large, but nine fugitives sought by ICTR have continued to escape capture, three of whom are among the most high-ranking of the accused. ICTR Prosecutor Hassan Bubacar Jallow called on the Member States of the Great Lakes Conference to provide information and aid in the apprehension of the remaining fugitives [UN News Centre report], as the trial work of the ICTR is due to be finished by the end of the second quarter of 2012, with appeals work finished by early 2014. ICTY Prosecutor Serge Brammertz observed [ICTY press release] that the capture of the remaining ICTY fugitives means that tribunal is now fully occupied with finishing its trials and appeals in fulfillment of its completion strategy, but expressed concern over statements by high-level Croatian authorities that question the validity of the ICTY's work. On the other hand he noted that day-to-day cooperation with his office is proceeding well in Bosnia and Herzegovina. The presidents of the ICTR and ICTY, Judge Khalida Rachid Khan and Judge Theodor Meron [ICTY press release], also addressed the 15-member Security Council on the work of their respective courts.

Last month the two presidents told the UN General Assembly [official website] that the tribunals are in need of experienced staff to complete their work [JURIST report], warning of the difficulties in retaining staff at the ICTY and the ICTR because both tribunals are nearing the end of their work and employees are leaving for more permanent jobs. Currently the ICTY is preparing to try its last two fugitives, captured earlier this year. Serbian general Ratko Mladic [ICTY backgrounder, PDF; JURIST news archive] is being held pending his trial at The Hague following his May arrest [JURIST report] after 16 years on the run. He is charged with committing war crimes during the Bosnian civil war [JURIST news archive] and the Srebrenica massacre [JURIST news archive] where 8,000 people were killed. Croation Serb rebel leader Goran Hadzic [ICTY backgrounder], who was arrested [JURIST report] in June, is also being held at The Hague pending his trial also on charges of war crimes committed during the Bosnian civil war and Srebrenica massacre. Last month the ICTR convicted [JURIST report] former Rwandan mayor Gregoire Ndahimana [HJP profile] of genocide and crimes against humanity and sentenced him to 15 years in prison. 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. Rwandan genocide suspect and former Hutu militia leader Bernard Munyagishari is awaiting trial at the ICTR for charges of genocide and crimes against humanity, alleged to have recruited, trained and led a militia group that killed and raped Tutsi women during the 1994 Rwandan genocide [BBC backgrounder; JURIST news archive].

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Rights group urges new Yemen government to raise legal marriage age
Alexandra Malatesta on December 8, 2011 10:43 AM ET

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[JURIST] Human Rights Watch [official website] called Thursday for the government of Yemen [JURIST news archive] to increase the minimum age [press release] for girls to enter into marriage. In a 54-page report [text, PDF] titled "How Come You Allow Little Girls to Get Married?" HRW claims that the current laws effectively make Yemeni girls and women second class citizens, often forcing them into pre-arranged child marriages where they will have no control over decisions such as when to bear children. More than half of Yemeni women report having entered into marriage before 18 years of age. The report claims that raising the marital age to 18 will increase girls' educational opportunities and protect their human rights [AP report]. HRW made several recommendations to the Yemeni government:
To the Government of Yemen:
  • Set the minimum age for marriage at 18 in accordance with the definition of a child in the Convention on the Rights of the Child.
  • Raise awareness with religious leaders about the harmful health consequences of child marriage on the lives of girls and women.
  • Increase and improve access to reproductive health services and information for all girls and women, including access to emergency obstetric care and family planning.
  • Develop retention strategies to ensure that girls who enroll in school are able to remain in school, such as financial incentives for families to keep girls in school and to subsidize the costs of uniforms and textbooks.
  • Raise awareness about the obligation to register births and marriages through the media.
A majority of Yemenis, including 83.4 percent of Yemeni women, would reportedly support fixing the marital age at 18 years old [Yemen Polling Center]. Despite denying a 2009 bill that proposed fixing the minimum marital age at 17 [Equality Now report], Yemen ratified the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination against Women in 2008.

Yemen has been repeatedly criticized for various human rights abuses in the past. In September, a delegation from the UN Office of the High Commissioner for Human Rights (OHCHR) [official website] released a report [text, PDF] announcing a humanitarian crisis [JURIST report] in Yemen that requires immediate intervention. The OHCHR verified that the Yemeni government was firing on peaceful protesters as well as warring against armed rebels, and that as a tactic of war, both sides were withholding water, fuel and electricity from civilians. The report also listed a number of human rights atrocities, including the government shooting at ambulances and preventing activists from receiving medical treatment, utilizing child soldiers, and illegally detaining, torturing and killing an inestimable number of adults and children. The report ended with a plea to both the armed rebels and the government of Yemen to end the violence and called on the international community to condemn Yemen's action and provide humanitarian and financial relief to the nation. Yemen has also been criticized [AI report] for its handling of pro-democracy protests that have persisted since February.

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US citizen sentenced to prison for insulting Thailand royalty
Alexandra Malatesta on December 8, 2011 10:32 AM ET

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[JURIST] Thai-born American citizen Joe Gordon (Thai name Lerpong Wichaikhammat) was sentenced Thursday to two-and-a-half years in a Thai prison after pleading guilty to violating Section 112 of the Thai Penal Code [text] by defaming the royal family by translating excerpts of a locally banned biography of King Bhumibol Adulyadej and posting them online. Gordon was arrested [Huffington Post report] this past May when visiting Thailand, several years after [AP report] posting the controversial blog in Colorado. Before Gordon's sentence was announced, he reiterated his American citizenship [Reuters report] and discredited the Thai judicial system. The Thai law states "whoever defames, insults or threatens the King, the Queen, the Heir to the throne or the Regent shall be punished with imprisonment of three to fifteen years." While Gordon's lawyer Arnon Nampa has stated he does not plan to appeal, Gordon will request royal pardon to excuse his sentence.

UN Special Rapporteur on freedom of expression Frank La Rue [official website] recently condemned the law [JURIST report]. La Rue also condemned the country's 2007 Computer Crimes Act [unofficial text], which imposes a prison sentence of up to five years for any views expressed on the Internet in relation to the monarchy deemed to be a threat to national security. The act is used to further enforce the country's insult law, La Rue said, "[t]he threat of a long prison sentence and vagueness of what kinds of expression constitute defamation, insult, or threat to the monarchy, encourage self-censorship and stifle important debates on matters of public interest, thus putting in jeopardy the right to freedom of opinion and expression. ... This is exacerbated by the fact that the charges can be brought by private individuals and trials are often closed to the public." In 2009, Amnesty International (AI) [advocacy website] called for a public trial [JURIST report] for a Thai political activist accused of lese majeste, or insulting the royal family. Judge Prommat Toosang ordered [Reuters report] that the trial of Darunee Charnchoengsilpakul [advocacy website] be closed for national security reasons. AI's Asia-Pacific director Sam Zarifi noted that although the closure of trials is legitimate under the International Covenant on Civil and Political Rights (ICCPR) and the Thai Constitution, the government "will have a very difficult time explaining why the trial of someone charged with making an insulting remark could compromise Thailand's national security." Zafiri said that Prommat's guarantee of a fair trial was inadequate and "simply not verifiable" unless the trial is conducted in public.

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US to use foreign aid, diplomacy to advance LGBT rights globally
John Paul Putney on December 8, 2011 8:34 AM ET

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[JURIST] US Secretary of State Hillary Clinton [official profile] announced Tuesday that the US will use foreign assistance, international diplomacy and political asylum to promote gay rights [remarks]. The secretary's remarks before the UN Human Rights Council [official website] in Geneva were in tandem with an executive memo [text] from US President Barack Obama [official website] directing federal agencies to investigate avenues to combat criminalization of homosexuality [SFC report] and to consider gay rights in aid and asylum decisions [BBC report]. In conjunction with International Human Rights Day, the secretary explained:
Some have suggested that gay rights and human rights are separate and distinct; but, in fact, they are one and the same. ... Yet in the past 60 years, we have come to recognize that members of these groups are entitled to the full measure of dignity and rights, because, like all people, they share a common humanity. ... Like being a woman, like being a racial, religious, tribal, or ethnic minority, being LGBT does not make you less human. And that is why gay rights are human rights, and human rights are gay rights.
The immediate implications are unclear as several current aid recipients have laws criminalizing homosexuality.

As Clinton noted, gay rights have not been universally acknowledged. Last week, the Nigerian Senate passed a bill making it illegal for same-sex couples to marry [JURIST report] or for an individual to aid in the marriage of same-sex couples. The bill explicitly states that marriages entered into by persons of the same gender are prohibited and will not be recognized as valid, even if the marriage certificate is obtained in a foreign country. Last month, Russian lawmakers in the city of St. Petersburg overwhelmingly approved an initial reading of a bill that would impose fines against people convicted of promoting homosexuality [JURIST report], including gays or lesbians who are open about their sexuality. The legislation, which was supported by the ruling United Russia party [AFP report], would ban gay pride parades and any activity in public which could influence children and that could be viewed as promoting a gay, lesbian, transgender or LGBT lifestyle. Also last month, the Ugandan High Court [official website] sentenced a man to 30 years in prison for beating to death prominent gay rights activist [JURIST report] David Kato. Enock Nsubuga confessed to the January 2011 killing, admitting to beating Kato [Reuters report] with a hammer at his home before he died on the way to the hospital. Nsubuga claimed that he attacked Kato in response to sexual advances he made.

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Mexico authorities disrupt Gaddafi son attempt to enter country
Jerry Votava on December 8, 2011 7:40 AM ET

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[JURIST] Saadi Gaddafi, son of deceased former Libyan leader Muammar Gaddafi [BBC obituary; JURIST news archive], was implicated Wednesday in a plot to flee to Mexico by the Secretary of the Interior [official website, in Spanish]. The announcement [press release, in Spanish] described the disruption by Mexican intelligence officials of an international criminal gang that had created false documents, purchased property and made other arrangements in preparations for Gaddafi's arrival. A government spokesperson said that the action, called Operation Houseguest, was, "to prevent the realization of a plan that would permit the illegal entry of Saadi Gaddafi, son of former Libyan ruler Mummar Gaddafi, as well as his family into the national territory, this from intelligence obtained on September 6." The people arrested included citizens of Mexico, Canada and Denmark.

The Libyan government and international law enforcement agencies have been in pursuit of the Gaddafi family [BBC backgrounder]. Saadi's brother Saif al-Islam Gaddafi was captured [JURIST report] in November in Libya, and the International Criminal Court [official website] Chief Prosecutor Luis Moreno-Ocampo [official profile] said the ICC would allow Libya to conduct Seif al-Islam's trial. This report comes as the Libya conflict [JURIST backgrounder] appears to be drawing to a close after the interim Libyan prime minister declared [JURIST report] the country's liberation following Gaddafi's death.

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Unprecedented Notice of Warrantless Wiretapping in a Closed Case
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