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Legal news from Tuesday, December 13, 2011

Congress reaches agreement on controversial defense bill
Rebecca DiLeonardo on December 13, 2011 3:52 PM ET

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[JURIST] Leaders in the US House and Senate on Monday evening announced that they had reached an agreement on the National Defense Authorization Act for 2012 [SB 1867, PDF] after making some modifications and adding text. The bill, which was passed by the Senate [JURIST report] in its original form earlier this month, included a controversial provision authorizing the president to use "all necessary and appropriate force" to detain individuals suspected of terrorism. President Barack Obama expressed concerns that some of the provisions in the bill were "legally questionable" in a Statement of Administrative Policy [text, PDF] released in November. Lawmakers said they hoped the additional text would dispel uncertainty and eliminate the threat of a presidential veto. Opponents of the bill fear it could be a threat to the constitutional liberties of US citizens. Supporters argue that the idea of an American citizen suspected of aiding al Qaeda [GlobalSecurity backgrounder; JURIST news archive] not getting due process is simply a lie. The White House has not issue a statement addressing the modifications to the bill.

The provision in question was approved [JURIST report] earlier this month by the Senate Armed Services Committee (SASC) [official website] in a unanimous vote after disagreements regarding the provision had blocked their passage for months [CNN report]. The passage by the SASC came shortly after an American Civil Liberties Union (ACLU) [advocacy website] report [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 certain US 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 archive], but stated that other questionable practices remain "core elements of [US] national security strategy today."

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Suu Kyi's party granted legal status for Myanmar elections
Jaclyn Belczyk on December 13, 2011 3:02 PM ET

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[JURIST] The Myanmar government announced Tuesday that the political party of opposition leader Aung San Suu Kyi [JURIST news archive] will be allowed to register for the next elections. Suu Kyi's National League of Democracy (NLD) [party website] decided last month to reenter politics after boycotting last year's elections in which Suu Kyi was not allowed to run. The move may allow Suu Kyi to run for parliament after being detained under house arrest for nearly eight years. A date for the next elections has not yet been set.

Myanmar has made a series of reforms following a transfer of power from a military regime to a civil system in March after holding its first elections in 20 years. In October US Assistant Secretary of State Kurt Campbell indicated that Myanmar's civilian-led government was planning dramatic changes including releasing hundreds of political prisoners [JURIST report] and consequential dialogue with Suu Kyi. Myanmar's government formed a national human rights commission [JURIST report] in September to promote and safeguard the country's constitutional rights. In August, UN Special Rapporteur on the situation of human rights in Myanmar Tomas Ojea Quintana urged the government of Myanmar to investigate human rights abuses [JURIST report] and improve its rights record. In May, Myanmar began releasing as many as 15,000 prisoners [JURIST report] as part of an amnesty program after a visit from a special envoy from the UN secretary-general, but rights groups claim the government has not gone far enough.

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Cambodia genocide tribunal blocks release of Khmer Rouge leader
Jaclyn Belczyk on December 13, 2011 2:12 PM ET

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[JURIST] The Supreme Court Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website] on Tuesday ordered that former Khmer Rouge leader Ieng Thirith [ECCC profile] remain in detention [decision, PDF; press release]. The Trial Chamber found last month that Ieng Thirith is unfit to stand trial [JURIST report] for war crimes because of dementia from Alzheimer's disease and ordered her immediate release. The prosecution appealed [JURIST report]. Granting the prosecution's request, the Supreme Court Chamber found that the Trial Chamber must exhaust all measures to help Ieng Thirith become fit to stand trial. The Supreme Court Chamber ordered the Trial Chamber to arrange for treatment and reevaluate the accused after six months. Ieng Thirith, the former minister of social affairs under the Khmer Rouge regime, was the only female leader to be charged.

Ieng Thirith was declared unfit to stand trial just days before the trial of her and three other defendants was set to begin. Nuon Chea, the Khmer Rouge's chief ideologist, Khieu Samphan, a former head of state, and Ieng Sary [ECCC profiles], the former foreign minister, went on trial [JURIST report] last month on charges of crimes against humanity, breach of international law and genocide. In testimony last week, Nuon Chea denied responsibility for the deaths of around 1.7 million people during the regime's rule during the 1970s. 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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Canada withdraws from Kyoto protocol on climate change
Jaclyn Belczyk on December 13, 2011 1:24 PM ET

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[JURIST] Canadian Minister of the Environment Peter Kent [official profile] announced Monday that Canada will withdraw [statement] from the Kyoto Protocol [text; JURIST news archive] on climate change, making it the first country to do so. The treaty was signed by Canada's previous Liberal government, but little had been done to implement it. Kent said that the protocol "will not work" because it does not cover the two largest emitters, the US and China. He called it an "impediment" and said:
We believe that a new agreement, with legally binding commitments for all major emitters, that allows us as a country to continue to generate jobs and economic growth, represents the path forward. ... Canada will work towards a legally binding agreement to address global emissions that allows us to continue creating jobs and economic growth in Canada. Domestically, we will continue to do our part to reduce greenhouse gas emissions. ... We are also helping developing countries do their part with investments that will help them reduce their emissions and deal with the effects of climate change.
The decision has been criticized [press release] by environmental groups such as the Sierra Club Canada [advocacy website]. UN Climate Chief Christiana Figueres expressed disappointment and said that Canada still "has a legal obligation under the [Climate Change] Convention to reduce its emissions, and a moral obligation to itself and future generations to lead in the global effort."

Kent's announcement comes just one day after the conclusion of the Durban UN Climate Change Conference [official website] in South Africa. Delegates from 194 countries agreed to negotiate global initiatives [JURIST report] that would eventually force countries to take legally-binding action in order to slow the pace of climate change. After two weeks of debate, the delegates agreed on four major proposals. First, the countries decided to extend the Kyoto Protocol, whose first phase of emissions cuts runs from 2008 to the end of 2012. Under Sunday's proposal, the second commitment to Kyoto will extend from the beginning of 2012 until the end of 2017. Second, in light of a failure to create a new, internationally-binding treaty at a climate conference in Copenhagen in 2009, the delegates agreed to form a process known as the Durban Platform for Enhanced Action [proposal text, PDF] which entails negotiations to form a legally-binding climate change agreement by 2015 to be enacted by 2020. Third, although poor nations have consistently needed help to finance the adaptations to climate change, the debt crisis has forced developed nations to also limit their contributions to the initiative. The delegates broke ground in agreeing to design a Green Climate Fund [proposal text, PDF] to pool up to $100 billion a year by 2020 for poor countries, but they did not establish how they would reach this number, nor who would contribute to it. Finally, the delegates agreed that implementing a new internationally-binding instrument would raise ambition to reduce greenhouse gas emissions. As such, they decided to launch a work plan to close the "ambition gap" between countries' current emissions reduction pledges for 2020 and the goal of keeping global warming below two degrees Celsius. Other proposals that were raised but not agreed upon include mechanisms for national adaptation plans [proposal text] and an extension of emissions cut pledges made in Copenhagen in 2009 and in Cancun in 2010.

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ICC deputy prosecutor officially elected next chief prosecutor
Jaclyn Belczyk on December 13, 2011 12:35 PM ET

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[JURIST] Fatou Bensouda [official profile] of the Gambia, Deputy Prosecutor of the International Criminal Court (ICC) [official website] was officially chosen Monday to succeed Chief Prosecutor Luis Moreno-Ocampo [official profile] when his nine-year term expires next year. Liechtenstein's UN Ambassador Christian Wenaweser, outgoing president of the Assembly of States Parties (ASP) to the Rome Statute that set up the ICC, announced last month that he would recommend Bensouda as the sole candidate [JURIST report] for the position. Bensouda was elected by the ASP Monday as they met for their Tenth Session [materials]. In prepared remarks to the ASP, Bensouda said:
In Rome in 1998, representatives from civil society and from States with different legal traditions debated the creation of the Rome Statute from different perspectives, but all knew that the new legal design would profoundly impact the way international relations are governed. It is impacting other institutions and indeed, as Prosecutor Moreno-Ocampo said, changing international relations forever. As the next Prosecutor, I hope to contribute to solidifying this change, remaining committed to the goals of the Court and the legal mandate entrusted to the Prosecutor to end impunity for those responsible for the gravest offenses, bringing justice to their victims, and preventing future crimes.
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. Bensouda 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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Corruption resulting in unequal access to resources: report
Jaclyn Belczyk on December 13, 2011 11:14 AM ET

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[JURIST] Corruption is leading to unequal distribution of land and resources, resulting in human rights violations, according to a working paper [text, PDF; press release] published Monday by the UN Food and Agriculture Organization (FAO) [official website] and Transparency International (TI) [advocacy website]. According to the report, corruption flourishes where land governance is efficient. "Weak land governance tends to be characterised by low levels of transparency, accountability and the rule of law." Corruption can involve public officials as well as private actors and can "undo the legal and social legitimacy of these actors if they are considered to be too corrupt." The report recommends "build[ing] transparent, effective and accountable land tenure systems," revising land policies, "provid[ing] legal recognition to tenure rights that are considered legitimate but are not correctly protected by law" and "promot[ing] more transparent and effective land certification and registration systems."

Earlier this month, TI released its 2011 Corruption Perceptions Index (CPI) [report, PDF], again showing some governments failing to protect citizens from corruption [JURIST report], 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. 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.

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Federal appeals court strikes down Wisconsin campaign finance law
Katherine Getty on December 13, 2011 10:12 AM ET

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[JURIST] The US Court of Appeals for the Seventh Circuit [official website] on Monday struck down [opinion, PDF] a Wisconsin law that prohibited people from donating more than $10,000 a year to political action committees (PACs). The case was brought by Wisconsin Right to Life [advocacy website] before the 2010 gubernatorial election on grounds that the law violated the First Amendment. The unanimous decision does not apply [press release] to political action committees that give contributions to candidates or political parties, only to those that act independently of candidates or political parties. All citizens of Wisconsin did not greet the decision warmly. Mike McCabe, the executive director of Wisconsin Democracy Campaign said that the decision would cede too much power to political action committees in deciding elections. The appeal followed a decision by the US District Court for the Western District of Wisconsin [official website] that dismissed the case on grounds that the law was not unduly burdensome [order, PDF] on Wisconsin Right to Life.

Several courts have recently decided issues relating to campaign finance [JURIST news archive]. In June, the US Supreme Court [official website] ruled that an Arizona campaign finance regulation violated the First Amendment [JURIST report]. In May, the US Court of Appeals for the Eighth Circuit [official website] upheld [JURIST report] a Minnesota law that prohibited direct contributions to candidates and affiliated entities. The US District Court for the Southern District of New York [official website] ruled in 2009 that a Connecticut campaign finance law discriminated against minor party candidates [JURIST report] that violated the First and Fourteenth Amendments. Many of the issues pertaining to the legality of campaign finance laws arose when the Supreme Court made its decision [JURIST report] in Citizens United v. Federal Election Commission, which limited the Bipartisan Campaign Reform Act [text, PDF]. That challenge has paved the way for the other challenges to campaign financing laws.

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ICC refers Malawi to UN Security Council for failure to arrest Sudan president
Jaclyn Belczyk on December 13, 2011 10:07 AM ET

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[JURIST] The International Criminal Court (ICC) [official website] on Monday referred the Republic of Malawi [decision, PDF; press release] to the UN Security Council and the Assembly of States Parties to the Rome Statute [official websites] for failing to arrest Sudanese President Omar al-Bashir [case materials; JURIST news archive] when he visited the country for a trade summit in October. The court had previously asked Malawi for an explanation [JURIST report] of its actions. The ICC found "no conflict between Malawi's obligations towards the Court and its obligations under customary international law. The court concluded:
[I]t is the view of the Chamber that when cooperating with this Court and therefore acting on its behalf, States Parties are instruments for the enforcement of the jus puniendi of the international community whose exercise has been entrusted to this Court when States have failed to prosecute those responsible for the crimes within its jurisdiction. The Chamber therefore finds, in accordance with article 87(7) of the Statute that the Republic of Malawi has failed to comply with the Cooperation Requests contrary to the provisions of the Statute and has thereby prevented the Court from exercising its functions and powers under this Statute. The Chamber decides to refer the matter both to the United Nations Security Council and to the Assembly of States Parties.
The court reiterated that there is no immunity for heads of state who commit international crimes.

The ICC has previously reported Kenya and Chad [JURIST report] for failing to arrest al-Bashir when he visited those countries. Last month the Kenyan High Court ruled that al-Bashir must be arrested [JURIST report] if he ever returns to the country. In June ICC Chief Prosecutor Luis Moreno Ocampo said that al-Bashir has continued to commit crimes against humanity [JURIST report] in Darfur. In May, the ICC urged Djibouti to arrest al-Bashir [JURIST report]. Al-Bashir faces seven counts of war crimes and crimes against humanity as well as three charges of genocide [JURIST reports] in relation to the Darfur conflict [BBC backgrounder].

1:00 PM ET ~ The ICC reported Chad [decision, PDF, in French; press release] Tuesday for failing to arrest al-Bashir when he visted the country in August of this year.

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UN rights chief again urges Security Council to refer Syria to ICC
Jaclyn Belczyk on December 13, 2011 9:12 AM ET

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[JURIST] UN High Commissioner for Human Rights Navi Pillay [official profile] on Monday briefed the UN Security Council on the situation in Syria, reiterating her call for a referral [press release] to the International Criminal Court (ICC) [official website]. Pillay reported that more than 5,000 civilians have been killed in the ongoing conflict, including more than 300 children. She also said that there were reports of torture in detention centers. Speaking to reporters after the briefing, Pillay said [video]:
This is what I recommended to the Security Council: I indicated in some detail the evidence. And so it is based on the evidence and the widespread and systematic nature of the killings, the detentions and the acts of torture that I felt that these acts constituted crimes against humanity, and I recommended that there should be a referral to the International Criminal Court.
Pillay also called on the Syrian government to allow human rights monitors into the country and to cooperate fully with the investigations.

Earlier this month, the UN Human Rights Council [official website] adopted a resolution strongly condemning the recent violence [JURIST report] in Syria. The resolution came after the Independent International Commission of Inquiry on Syria reported that the Syrian government 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 month the UN General Assembly's Human Rights Committee approved [JURIST report] a draft resolution [materials] condemning Syria's human rights violations and calling for their immediate end. Pillay previously called for an ICC probe [JURIST report] into the situation in Syria in August.

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Unprecedented Notice of Warrantless Wiretapping in a Closed Case
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