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Legal news from Friday, December 9, 2011




Japan whalers file suit against anti-whaling activists
Jaclyn Belczyk on December 9, 2011 2:31 PM ET

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[JURIST] Two Japanese whaling groups filed suit [press release, PDF] Friday against US-based anti-whaling group Sea Shepherd Conservation Society (SSCS) [advocacy website] in the US District Court for the Western District of Washington [official website]. The Institute of Cetacean Research (ICR) [official website] and the Kyodo Senpaku Kaisha claim that the SSCS and its founder Paul Watson are preventing them from engaging in what they say is lawful activity under Article 8 of the International Convention for the Regulation of Whaling [text, PDF], which allows for the taking of whales for scientific research purposes. SSCS, which regularly sends vessels to disrupt the whaling activity, dismissed the suit [press release] as "frivolous and nothing more than the whalers attempting to use litigation as a weapon."

Japan's whaling program remains extremely controversial. In May, Australia brought a complaint [materials] against Japan in the International Court of Justice (ICJ) [official website] for its whaling practices in the Antarctic. Australia initiated proceedings [JURIST report] in May 2010, and oral arguments are scheduled to begin in May 2012. In July 2010, a Japanese court convicted New Zealand anti-whaling activist Peter Bethune on charges of assault, trespass, destruction of property, illegal possession of a weapon and obstruction of business for boarding a Japanese whaling vessel [JURIST reports] as part of an anti-whaling protest in January of that year. Berthune, who called the charges "bogus," was extradited to New Zealand, and he will not serve prison time unless he returns to Japan. Commercial whaling has been banned by the International Whaling Commission [official website] since 1986.




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ICTY convicts former Yugoslav intelligence officer of contempt for failure to testify
Katherine Getty on December 9, 2011 2:25 PM ET

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[JURIST] Former Yugoslav intelligence officer Dragomir Pecanac was convicted [judgment, PDF; press release] Friday on a charge of contempt for failing to testify before the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website]. The charges [press release] were brought against Pecanac in October when he failed to comply with a subpoena to testify as a witness in the trial against Zdravko Tolimir [ICTY materials; JURIST report], his former commander. In issuing its ruling, the ICTY found that Pecanac's actions failed to comply with the interests of justice:
Contempt of the Tribunal is a serious offence, which goes to the essence of the administration of justice. By his failure to comply with the Subpoena and to appear at the seat of the Tribunal and testify, the Accused has acted against the interests of justice. His failure to testify has deprived the Chamber of relevant evidence. The Tribunal is dependent on witness testimony and the deprivation of such relevant evidence amounts to a serious interference with the administration of justice, and in fact, endangers the fulfillment of the Tribunal's functions and mandate.
Pecanac was sentenced to three months in prison, but will get credit for the 74 days he has already served.

The tribunal issued a subpoena for Pecanac in August. When he failed to appear in September, the tribunal issued an order for contempt, in lieu of an indictment as well as an arrest warrant. In mid-October he entered a not guilty plea. Earlier this week the tribunal heard former Serbian general and alleged war criminal Ratko Mladic [JURIST news archive] enter a not guilty plea [JURIST report] to charges linked to the execution of more than 30 Muslim prisoners in the eastern town of Bisina in July 1995. He had previously refused to enter a plea in any of the charges against him. The trial [JURIST report] is scheduled to begin in March 2012. The ICTY reported to the UN Security Council on Thursday that the it is reaching a successful conclusion [JURIST report] since the last two fugitives wanted by the ICTY were captured. It is now finishing trials and appeals.




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Hawaii same-sex couple sues for right to marry
Jaclyn Belczyk on December 9, 2011 12:02 PM ET

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[JURIST] A lesbian couple filed suit [complaint, PDF] Wednesday in the US District Court for the District of Hawaii [official website] challenging the state's denial of same-sex marriage [JURIST news archive]. Hawaii Governor Neil Abercrombie (D) [official profile] signed [JURIST report] a same-sex civil unions bill [SB 232 text, PDF] into law in February. The legislation, set to go into effect on January 1, 2012, extends the same rights, benefits, protections and responsibilities of spouses in a marriage to partners in a civil union, but plaintiffs Natasha Jackson and Janin Kleid claim they are still being denied a "fundamental right" to marry under Hawaii's marriage law [text], which restricts marriage to a man and a woman. Jackson and Kleid applied for a marriage license last month and were denied. They claim the state is depriving them of their Due Process and Equal Protection rights under the Fourteenth Amendment [text] to the US Constitution. A spokesperson for Abercrombie declined to comment on the suit [Star Advertiser report] and said the complaint is currently being reviewed.

Same-sex marriage and civil unions remain controversial throughout the US. The US Court of Appeals for the Ninth Circuit is currently mulling Proposition 8 [JURIST report], California's same-sex marriage ban. Last month a New York state court judge ruled that a lawsuit challenging the state's recognition of same-sex marriage can proceed [JURIST report]. In September, the North Carolina legislature approved putting a constitutional amendment to ban same-sex marriage [JURIST report] on a statewide ballot to be voted on in May. Same-sex marriage is currently recognized in six US states—Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and New York—and the District of Columbia [JURIST reports].




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Ninth Circuit hears arguments on Proposition 8 issues
Jamie Reese on December 9, 2011 9:56 AM ET

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[JURIST] The US Court of Appeals for the Ninth Circuit [official website] heard oral arguments Thursday on two consolidated issues [JURIST report] regarding Proposition 8 [text, PDF; JURIST news archive], California's same-sex marriage ban. The first was an appeal from a refusal [JURIST report] by the US District Court for the Northern District of California [official website] to vacate former US district court judge Vaughn Walker's decision striking down Proposition 8 because he failed to disclose his own homosexuality and 10-year same-sex relationship. Proponents of Propostion 8, which include Protect Marriage [advocacy website], argued in their brief [text, PDF] that they had no problem with Walker hearing the case so long as "a reasonable person ... would not have reason to believe that the judge has a current personal interest in marrying if Plaintiffs prevail." Opponents, including the American Foundation for Equal Rights [advocacy website], countered this statement by arguing [text, PDF] that the district court properly ruled that recusal was not required, and, even if it was, vacating the judgment would be a "drastic and inappropriate remedy resulting in injustice to the Plaintiffs in this case." The second issue was whether video recordings [JURIST report] of the 2010 trial should be released to the public. Proposition 8 supporters argued [text, PDF] against the release because it could lead to harassment of their witnesses and claimed that the First Amendment right of access has no application in this instance. Proposition 8 opponents argued [text, PDF] that there is no reason not to make the recordings public, and, in fact, it is in the public interest to do so.

In November, the California Supreme Court [official website] ruled that sponsors of Proposition 8 have standing [JURIST report] to defend the measure in court. The same-sex marriage ban was initially struck down last year [JURIST report], and 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]. In March, the Ninth Circuit denied a motion to lift the stay order [JURIST reports] prohibiting gay couples from marrying while the appeal is pending. The Ninth Circuit heard oral arguments [video; JURIST report] on both the issue of standing and constitutionality last December but has not yet ruled.




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Argentina must protect rights of indigenous groups: UN expert
John Paul Putney on December 9, 2011 9:09 AM ET

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[JURIST] UN Special Rapporteur on Indigenous Rights [official mandate], James Anaya [academic profile], on Thursday urged Argentina to strengthen protection of human rights, rights to education and land ownership for indigenous groups as well as to establish sorely needed dialogue with government. His comments came after an 11-day visit to Argentina [press release] including meetings with both indigenous communities and government authorities [UN News Centre report] in Buenos Aires. Focusing on land disputes between indigenous groups and excavating firms, Anaya explained:
A central preoccupation expressed by indigenous leaders during my visit was the lack of judicial security over their land ownership rights and in particular the various problems and delays they face regarding their properties ... [and a] lack of dialogue and participation with the affected indigenous groups before undertaking such projects, and the lack of their role in the decision-making process, as well as of sharing the benefits of the projects resulting from use of their lands.
Anaya is scheduled to give a full report next year to the UN Human Rights Council.

The government of Argentina has ongoing issues with indigenous communities and currently has no mechanism for dialogue. In June 2007, the Supreme Court of Argentina [official website, in Spanish] ordered the government to provide basic necessities to indigenous peoples [JURIST report] of the Chaco region while it investigated claims that their land has been illegally sold to commercial farmers. The amparo action, brought by the office of the Defender of the People [official website, in Spanish], alleged that government officials have denied food and medical aid to the Toba, Wichi and Mocovi tribes, which together claim 60,000 members in the Chaco region, resulting in malnourishment illnesses such as cholera and tuberculosis and, in some cases, death. From June 2007, members of the Wichi community [Survival International profile] camped out in front of the Chaco regional government headquarters, some undergoing a hunger strike, to demand land rights, education and health care for the indigenous people of the Chaco. According to protesters, the government has permitted public lands reserved for indigenous groups in the Chaco to be sold to growers of genetically modified soy. In 2003, the Wichi won a legal battle against the government when the Supreme Court ruled that licenses to conduct commercial logging on the Wichi's traditional lands could not be granted without prior consultation with the tribe.




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Mladic pleads not guilty, trial set for March
John Paul Putney on December 9, 2011 8:00 AM ET

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[JURIST] Former Serbian general and alleged war criminal Ratko Mladic [ICTY backgrounder, PDF; JURIST news archive], after previously refusing to enter a plea in any of the charges against him, pleaded not guilty on Thursday to charges linked to the execution of more than 30 Muslim prisoners in the eastern town of Bisina in July 1995. The presiding judge at the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website], Alphons Orie, scheduled the pre-trial conference for March 26 with the trial to begin March 27 [AFP report]. The Mladic case [case materials] is expected to last years, and the court is anxious to avoid a similar delay in the legal process that allowed Slobodan Milosevic, Mladic's boss, to evade justice when he died of a heart attack in 2006 before his trial concluded. The defense team indicated it cannot meet the deadlines [AP report] imposed by the judge, who conceded they were not written in stone. Claiming to have never heard of Bisina, Mladic insisted he had nothing to do with it, but indicated he was in no hurry to start his trial.

Last week, a three-judge panel for the ICTY accepted a request brought last month by prosecutors to reduce the number of crimes [JURIST reports] they intend to prove against Mladic from 196 to 106. The request came days after the ICTY ordered a medical examination [JURIST report] of Mladic's physical condition in response to his absence from court the week prior due to illness. In October, the ICTY prosecutor refused to seek further appeal [JURIST report] of the tribunal's refusal to split Mladic's trial into separate actions: one for his conduct during the Srebrenica massacre [JURIST news archive], where approximately 8,000 people were killed, and one for all of his other charges during the Bosnian civil war [JURIST news archive]. Mladic made his first appearance [JURIST report] at the ICTY in June, contesting the charges while simultaneously asking for more time to review them, which he was granted. Before that, he had lost his final appeal in Serbia to avoid extradition, and was transported to The Hague [JURIST reports]. Serbian authorities captured Mladic [JURIST report] in May, ending a 16-year manhunt for the former general colonel and commander of the army of the Serbian Republic of Bosnia and Herzegovina. Mladic faces charges of genocide and crimes against humanity, including murder, political persecution, forcible transfer and deportations, cruel treatment and the taking of peacekeepers as hostages committed by Bosnian Serb forces under his command during the Bosnian civil war, which saw over 100,000 casualties and hundreds of thousands more displaced.




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