Jurist Paper Chase

[JURIST] Iran's Islamic Revolutionary Court has sentenced former vice president and reformer Mohammad Ali Abtahi to six years in jail for his role in the unrest that followed the disputed June 12 presidential elections, according to Iranian news agencies Saturday. Abtahi, who had been in custody since just after the election has been temporarily released on $700,000 bail pursuant to Iranian law which allows any person sentenced to more than three months in jail to be released on bail pending appeal. He served as vice president under Mohammad Khatami from 1997 to 2005. Abtahi has 20 days to appeal his sentence. Last week, an Iranian court sentenced five people to death for their roles in post election protests. In August, Iranian President Mahmoud Ahmadinejad called for the prosecution of opposition leaders who allegedly conspired to orchestrate widespread protests.

[JURIST] Marking its own 20th anniversary, Israeli human rights group B'Tselem claimed Sunday that almost 9,000 people have been killed in the conflict between Israel and the Palestinians since 1989. A majority of the deaths - 7,398 - were Palestinians. Of that number, 1,537 were thought to be minors. The report also said that 2009 has resulted in the highest casualties for Palestinians - 1033 - most of which were incurred in fighting in Gaza during Operation Cast Lead. During the same period, there were 1483 Israelis deaths, including 139 minors. The worst year for Israel was 2002, when 420 Israelis were killed during the second Palestinian intifada. The report also discussed the increase of Israeli settlements in the West Bank and East Jerusalem over the same time. In 1989 there were 69,800 Israelis living in the West Bank and 118,100 in East Jerusalem, compared to present numbers of about 300,000 and 190,000 respectively. Earlier this month, the UN General Assembly adopted a resolution giving Israel and Palestine three months to conduct independent investigations into possible war crimes committed during last winter's Gaza conflict. The General Assembly voted 114-18 with 44 abstentions expressing support for the Goldstone Report, the result of a UN Human Rights Council (UNHRC) fact-finding mission, which accused both Israeli Defense Forces (IDF) and Hamas fighters of war crimes during the conflict. Israel has criticized the report as biased, questioned the objectivity of the fact-finding, and has urged the UN not to adopt the report's findings in a statement to the General Assembly.

[JURIST] Federal prosecutors from the US Department of Justice (DOJ) indicated Friday that they will drop manslaughter charges against a Blackwater Worldwide security guard who had been involved in the September 2007 shooting incident in Baghdad that killed 17 Iraqis. According to the US Attorney for the District of Columbia, Channing Phillips, a motion was filed under seal to dismiss the charges against Nicholas Slatten. No reason was given as to why the indictment was being dismissed, but prosecutors asked that they be allowed to resubmit the charges at a later date if desired. Since the incident Blackwater has changed its name to Xe Services. Slatten was one of six guards indicted in December on charges of voluntary manslaughter, attempt to commit manslaughter, and using and discharging a firearm during and in relation to a crime of violence, which carries a 30-year mandatory minimum sentence. Five of the guards pleaded not guilty in January. However, a sixth guard pleaded guilty to charges of voluntary manslaughter and attempt to commit manslaughter for his role in the same incident. The Blackwater incident caused domestic outrage in Iraq and has prompted legal controversy in the US. In November 2008, a Federal Bureau of Investigation (FBI) investigation into the incident concluded that the shootings were unjustified. Blackwater ended its operations in Iraq in May.

[JURIST] Groups representing key witnesses appearing before the International Criminal Tribunal for Rwanda (ICTR) told Reuters Saturday that they may no longer participate in court trials following the acquittal of two suspects involved in the 1994 Rwandan genocide. The umbrella organization for the various survivor groups in Rwanda, IBUKA, threatened that if the ICTR did not reverse its decisions, the relationship between the ICTR and the survivor groups will end. Approximately 200 protesters marched in Kigali in opposition the ICTR's decisions. The protests are in response to two decisions by the ICTR last week. On Tuesday, the ICTR overturned the conviction and 20-year prison sentence of Protais Zigiranyirazo. The ICTR found that there was not sufficient evidence to convict him. Also on Tuesday, the ICTR acquitted Catholic priest Hormisdas Nsengimana and ordered his immediate release. A three-judge panel concluded there was insufficient factual and legal basis to convict Nsengimana.

[JURIST] The UN Human Rights Committee Friday passed a resolution criticizing Iran for human rights violations, especially in the aftermath of the controversial reelection earlier this year of President Mahmoud Ahmadinejad. The committee flagged detentions, arrests and the disappearance of individuals for exercising their freedoms of assembly and expression as areas of particular concern. The committee resolution, which passed 74-48, will go before the UN General Assembly for approval in December. The Iranian government immediately downplayed the significance of the committee action, insisting that the majority of the General Assembly does not support it. Last week, an Iranian court sentenced five people to death for protesting the election result. Iran began trying some of the arrested protesters in August. In July, Iranian officials announced a plan to either press charges against or release most of those held after the riots. Also in July, the International Campaign for Human Rights in Iran (ICHRI) reported that the number of deaths that occurred during the election protests exceeded governments reports.

[JURIST] Canada's Federal Court Friday ordered a review of a denial of refugee status for a lesbian US soldier who deserted the US Army in 2007 and fled to Canada. The Immigration and Refugee Board (IRB) originally rejected Bethany Smith's application in February, finding that she had failed to seek protection within the US and that such protection would have been adequate. Smith claimed that she was severely harassed and discriminated against based on her sexual orientation while stationed in Kentucky and that she faced possible persecution if she returned to the US. Judge Yves de Montigny held that Smith had presented clear and convincing proof that the US was unable to protect her and found that the IRB member who reviewed the application reached an "unreasonable" conclusion. US President Barack Obama recently pledged to end the controversial "Don't Ask, Don't Tell" policy, which subjects openly gay individuals to military discharge. After the US Supreme Court denied certiorari to review the policy in June, the US Senate Armed Services Committee announced that it would hold hearings to review it. Last year, more than 100 retired admirals and generals of the US military called for a repeal of the policy.

[JURIST] A federal judge on Friday ordered the release of Algerian Guantanamo Bay detainee Farhi Saeed Bin Mohammed. Judge Gladys Kessler directed the government to "take all necessary and approrpriate steps to facilitate release forthwith." The order resulted from a civil action brought against the US government for unlawfully detaining Farhi Saeed since 2002. Kessler's opinion remains classified pending review. Thirty other Guantanamo Bay detainees have been released based on unlawful detention suits since the US Supreme Court's 2008 decision in Boumediene v. Bush. Earlier this month, lawyers for four Uighurs at Guantanamo Bay filed a petition for certiorari with the Supreme Court, challenging an appellate ruling which prohibited courts from preventing the transfer of detainees to foreign countries for fear of prosecution or torture.

[JURIST] The International Criminal Tribunal for the former Yugoslavia (ICTY) on Friday appointed British lawyer Richard Harvey to represent Bosnian Serb leader Radovan Karadzic if he continues to boycott his trial when proceedings resume in March. Harvey is currently joint head of the British defense firm Garden Court Chambers and has extensive experience in high profile criminal defense cases in both the ICTY and the International Criminal Tribunal for Rwanda (ICTR). He served as lead defense counsel for Lahi Brahimaj, who was accused of ordering the torture and murder of detainees at Jablanica detention center as local commander of the Kosovo Liberation Amy and co-counsel in the ICTY Haradin Bala and ICTR Juvenal Kajelijeli prosecutions. It is unlikely that Karadzic, whose trial was adjourned just days after it began because of his refusal to participate, will cooperate with Harvey. Karadzic claims that he is boycotting his trial because of inadequate time to prepare a defense. The ICTY announced earlier this month that it would appoint counsel after a tribunal judge again denied Karadzic's request for a 10-month delay. Before requesting delay, Karadzic asked the UN Security Council to grant him immunity from trial after the ICTY appeals chamber rejected his argument that he was promised immunity by former US ambassador to the UN Richard Holbrooke in exchange for his resignation. Karadzic faces 11 charges, including genocide and murder, for war crimes committed during the 1992-1995 Bosnian war.

[JURIST] The Organization of the Islamic Conference (OIC) has begun lobbying for the UN General Assembly to pass an international treaty protecting religious beliefs and symbols from defamation, according to an AP report Friday. The efforts of the OIC are being led by Pakistan and Algeria with full support of the organization's 54 remaining members. The proposal is strongly opposed by western countries due to the effects the ban could have on freedom of speech and expression. The US government has openly condemned the idea of a bar on defamation of religion, which could have the adverse affect of suppressing dissidents and reformists in Muslim countries. Pakistani diplomat, Marghoob Saleem Butt, defended the OIC's proposal telling the AP that, "here has to be a balance between freedom of expression and respect for others. ... Taking the symbol of a whole religion and portraying him as a terrorist, that is where we draw the line." Butt was referring to a string of satirical Muslim comics published in Denmark four years ago, one of which depicted the Prophet Mohammed as a terrorist. The proposed ban does not state who would determine which actions would incite criminal liability, but these decision would likely be initially decided by each country's criminal court. Last month, the US State Department released its annual Report on International Religious Freedom, criticizing Islamic countries for limiting religious expression. The report found that countries such as North Korea and Iran have attempted to prevent religious defamation as a way to limit religious expression. Secretary of State Hillary Clinton said that freedom of religion is essential not only in the US but in every society, and limiting an individual's right of expression reduces that freedom. In addition to North Korea and Iran, the report criticized Myanmar, China, Sudan, Eritrea, Saudi Arabia, and Uzbekistan.

[JURIST] A judge for the US Court of Appeals for the Ninth Circuit on Thursday ordered the director of the Administrative Office of the US Courts (AO) to provide health benefits to the same-sex spouse of a federal employee. Karen Golinski, the federal court employee who sued for the benefits, was married in California during the six-month period during which same-sex marriage licenses were granted under state law. The director of the AO, Jim Duff, refused to certify Golinski's eligibility for the benefits to the Office of Personnel Management (OPM), citing the federal Defense of Marriage Act (DOMA), which prohibits federal recognition of gay and lesbian families. Judge Alex Kozinski rejected that argument, finding that the Federal Employee Health Benefits Act "permit the coverage of same-sex spouses." A similar order was issued by the Ninth Circuit Wednesday, when a judge ordered the Office of the Federal Public Defender for the Central District of California to compensate a gay man denied benefits for his male spouse. Also this week, New York's highest court ruled that same-sex spouses of state employees married in other states are entitled to benefits.

[JURIST] The US Senate on Thursday voted 59-39 to confirm Judge David Hamilton to the US Court of Appeals for the Seventh Circuit, overcoming Republican opposition to secure President Barack Obama's first and longest-delayed judicial nominee. Senate Judiciary Committee Chairman Patrick Leahy (D-VT) said a Republican filibuster delayed the vote for five-and-a-half months, since it was first put on the Senate's executive calendar on June 4. On Tuesday, the Senate broke the Republican filibuster, voting 70-29 to bring debate over the nomination to an end. Obama nominated Hamilton on March 17 and he is Obama's eighth judicial nominee to be confirmed by the Senate. The American Bar Association Standing Committee on the Federal Judiciary, which rates judicial nominees, unanimously gave Hamilton its highest rating of "well qualified." Hamilton's confirmation comes less than two weeks after the Senate confirmed Judge Andre Davis to the US Court of Appeals for the Fourth Circuit, by a vote of 72-16. Obama's other judicial nominee confirmations include Supreme Court Justice Sonia Sotomayor, Second Circuit Judge Gerard Lynch, and three federal district court judges.

[JURIST] The Somali Transitional Federal Government on Friday announced its intention to ratify the Convention on the Rights of the Child (CRC), which, if successful, would make the US the only UN member state not to have done so. The UN International Children's Emergency Fund (UNICEF) welcomed the announcement that Somalia's ministers had agreed in principle to work toward ratification of the convention defining universal children's rights. The convention has been ratified by 193 nations, making it the world's most widely ratified human rights treaty. In commemoration of the 20th anniversary of the UN's adoption of the CRC, UNICEF released a report detailing the progress and challenges remaining in protecting the rights of children. Noting that the Convention is largely compliant with US laws and that the US played a significant role in drafting the treaty, Human Rights Watch said Thursday that "US ratification is long over-due" and urged the president and Senate to ratify the convention. In June, US Ambassador to the UN Susan Rice said that the Obama administration is seeking ways to have the US sign on to the treaty. In 1995, then-president Bill Clinton signed the CRC, but never submitted it to be ratified by the Senate. Opponents of the CRC allege that the treaty puts US sovereignty in jeopardy and undermines parental rights. Earlier this year, Obama signed the UN Convention on the Rights of Persons with Disabilities (CRPD), the first international human rights treaty the US has signed in nearly a decade. The CRPD is awaiting ratification in the Senate.

[JURIST] A three-judge panel of the US Court of Appeals for the Ninth Circuit on Thursday affirmed a lower court's denial of a conservative advocacy group's motion to intervene in a challenge to Proposition 8, California's constitutional amendment banning same-sex marriage. The appeals court held that the district court did not abuse abuse its discretion by denying the motions to intervene. The Campaign for California Families (the Campaign) had sought to intervene, alleging that the defending parties to the suit, Official Proponents of Proposition 8 and ProtectMarriage.com, would not adequately represent the interests of the Campaign. Judge Margaret McKeown rejected that argument: The reality is that the Campaign and those advocating the constitutionality of Prop. 8 have identical interests—that is, to uphold Prop. 8. Any differences are rooted in style and degree, not the ultimate bottom line. Divergence of tactics and litigation strategy is not tantamount to divergence over the ultimate objective of the suit.The Campaign alleges that the current defendants in the suit challenging Proposition 8 have compromised upholding the measure by conceding to facts that declare homosexuality is an immutable characteristics. The current defending parties deny those claims.In August, a judge in the US District Court for the Northern District of California ruled that several advocacy organizations representing both sides of the issue could not intervene in the lawsuit challenging Proposition 8. The lawsuit was filed in May by former US solicitor general Ted Olson and prominent litigator David Boies, who were opposing counsel in Bush v. Gore, which decided the outcome of the contested 2000 US Presidential election. The challenge was announced shortly after the California Supreme Court ruled that state law challenges to the ban lacked merit. Proposition 8, approved by voters in November, was a response to the California Supreme Court's decision last year striking down a statutory ban on same-sex marriage as violating the equal protection and privacy provisions of the state constitution.

[JURIST] The Argentine Senate on Thursday voted 57-1 to approve a law that authorizes the government to obtain DNA samples from individuals suspected to have been born to forced disappearance victims of the 1976-1983 "Dirty War". The law will amend Article 218 of the Criminal Penal Code to allow minimal biological samples to be taken from a person to determine biologic identity, authorizing judges to issue warrants to obtain alternate biological samples from personal effects using the least coercive methods necessary. Controversy around the law stemmed from issues of consent and right to privacy, as well as an individual's right to refuse knowledge of their biological parents. Among the supporters of the law is the association Abuelas de Plaza de Mayo, a group dedicated to obtaining restitution for the relatives of persons disappeared during the Pinochet dictatorship. Among the vocal opponents to the law is Ernestina Herrera de Noble, owner of the influential media group El Clarin, who has two adopted children born during the years of the Dirty War. Also on Thursday, the Argentine Senate approved voted 38-20 to approve a law that establishes the National Genetic Information Bank as an autonomous institution under the Ministry of Science and Technology. The same Senate session also approved a law that will allow non governmental human rights organizations to bring suit in cases involving human rights violations or crimes against humanity, including crimes forced disappearances. Last week, the National Chamber of Criminal Cassation enhanced a sentence imposed on a couple convicted of abducting children of forced disappearance victims and suppressing the child's identity, holding that these offenses constitute crimes against humanity. In August, the Supreme Court of Argentina ruled in the case of two suspected children of disappeared persons that individuals cannot be required to submit blood samples to test whether they were abducted as children during the Pinochet regime, but that genetic material can be collected from personal effects. The case was raised by the association Abuelas de Plaza de Mayo. The association has been able to locate about 100 of the 500 children they have set out to find.

[JURIST] The New York Court of Appeals on Thursday dismissed a challenge to two policies that provide benefits to same-sex couples married outside of the state. The first policy was a 2006 decision by the Westchester County executive to extend benefits to same-sex spouses of county employees. The second policy was a 2006 decision by the president of the New York Civil Service Commission, mandating an extension of full benefits to all spouses of state employees enrolled in the New York State Health Insurance Plan. Prior to that decision, extension of benefits to same-sex spouses was at the discretion of the individual state agencies. In explaining the court's decision to affirm the Appellate Division's dismissal, Judge Eugene Pigott Jr. stated that in regards to the Westchester policy, the plaintiffs failed to provide evidence of specific harms resulting from the policy, relying instead on, "bare legal conclusions with no factual specificity." In regards to the State Civil Service Commission policy, Pigott noted that under sections 161 and 164 of the New York Civil Service Laws, the commission president is authorized to establish a health insurance plan for state officers and their dependents, and that the president has discretion to define the scope of dependents for purposes of benefits. In a concurring opinion joined by three others, Judge Carmen Ciparick stated that she would have simply affirmed the dismissal on the grounds that, "same-sex marriages, valid where performed, are entitled to full legal recognition in New York under our State's longstanding marriage recognition rule." Currently, New York does not permit same-sex marriages, but in April, Governor David Patterson announced legislation that would allow same-sex couples to be married in the state. That legislation was approved by the state assembly in May, and a senate vote is expected before the end of the year. Patterson had previously issued an order to all state agencies in 2008 to recognize same-sex marriages, citing a New York Appellate Division ruling that same-sex marriages performed out of state are entitled to recognition in New York.

[JURIST] The conflict-ravaged nations of Somalia, Afghanistan, Myanmar, Sudan, and Iraq rank among the world's most corrupt, according to the 2009 Corruption Perceptions Index (CPI) prepared by Transparency International (TI). The index, released Tuesday, ranked 180 countries based on observations by businesspeople and analysts, giving each a score between 0 and 10. Somalia had the lowest score of 1.1, while Afghanistan scored 1.3, Myanmar scored 1.4, and Sudan and Iraq tied at 1.5. More than half of the countries surveyed had scores below 5. TI suggests that the global financial crisis may be contributing to corruption, especially in countries that lack stable governments. TI chair Huguette Labelle said:Stemming corruption requires strong oversight by parliaments, a well performing judiciary, independent and properly resourced audit and anti-corruption agencies, vigorous law enforcement, transparency in public budgets, revenue and aid flows, as well as space for independent media and a vibrant civil society. The international community must find efficient ways to help war-torn countries to develop and sustain their own institutions.The countries with the highest scores were New Zealand, with a 9.4 and Denmark, with a 9.3. The 2008 CPI also found Somalia, Myanmar, Iraq, Afghanistan, and Sudan at the bottom of the list, as well as Haiti. Haiti improved its score in 2009, but still remains near the bottom of the list. The 2007 and 2006 CPIs had similar findings.

[JURIST] The Constitutional Court of Russia on Thursday extended the moratorium on the death penalty until the Russian parliament ratifies an international treaty abolishing capital punishment. In 1997, Russia signed, but did not ratify, Protocol 6 of the Convention on the Protection of Human Rights and Fundamental Freedoms, which was put forward by the Council of Europe (COE) in 1983 to limit the exercise of the death penalty to cases involving "acts committed in time of war or of imminent threat of war." The court noted that Russia was invited to join the COE in part because of its expressed intention to place a moratorium on the penalty and take steps towards its abolition. The court also stated that allowing capital punishment may violate Russia's obligations under Protocol 6, citing Article 18 of the Vienna Convention on the Law of Treaties (VCLT), which requires signatories to "refrain from acts which would defeat the object and purpose of a treaty." In December 2006, the Russian Duma effectively extended the national moratorium on the death penalty until 2010, when Chechnya is expected to become the last state to adopt a federal law establishing trials by jury. In February 1999, the Constitutional Court imposed a moratorium on the death penalty until the federal law is implemented in all regions within the country. The Russian death penalty has drawn repeated criticism from the COE, which has pressured Russia to abolish it completely.

[JURIST] The UK High Court ruled Thursday that the details of the detention of Binyam Mohamed in Pakistan in 2002 must be released. This most recent decision is the latest in a series of back and forth rulings on whether redacted materials regarding Mohamed's detention should be disclosed. An October interim ruling by Lord Justice Thomas and Justice Lloyd Jones resulted in a redacted release, which the High Court indicated it would revisit after receiving submissions from both the Foreign & Commonwealth Office (FCO) and Mohamed. In handing down this most recent decision, Thomas and Jones said that in making public details of a detainee's treatment, "we were not in the judgment 'giving away the intelligence secrets of a foreign country' or making public 'American secrets.'" Both justices were critical of Foreign Secretary David Milliband's efforts to keep the information classified, noting that the US had already released similar information on the treatment of Abu Zubayah. As part of the judgment, the justices indicated that the FCO had already sought an expedited appeal of the decision, though that matter would be handled by another court and it is not clear how quickly the hearing will occur. This decision comes one day after a separate judge on the High Court ruled that, in Mohamed's separate suit for damages, information relating to his treatment at Guantanamo Bay may be withheld under a "closed material procedure." Mohamed was returned to the UK in February, after charges against him were dismissed in October 2008. Mohamed had been held at Guantanamo Bay for four years, on suspicion of conspiracy to commit terrorism.

[JURIST] The Supreme Court of Bangladesh on Thursday denied the final appeals of five former military officers sentenced to death for the 1975 military coup assassination of Sheikh Mujibur Rahman, the country's first leader. Bangladeshi Prime Minister Sheikh Hasina Wajed, Mujibur's daughter, praised the latest decision in the 16-year old murder trial. The convicted officers, who are currently in prison, may appeal to the prime minister for clemency. Hasina had promised to make her father's murder trial a priority of her administration when she was elected in 2008 to a second term in office. Mujibur and 16 family members were killed during a military coup that erupted only four years after Bangladesh won independence from Pakistan in 1971. In April, the government of Bangladesh announced that it was working with the UN to establish prosecutions of alleged war crimes committed during the 1971 War of Independence. The country ended 2 years of emergency rule in December 2008, with the government declaring its intent to restore the 1972 constitution.

[JURIST] The European Court of Justice (ECJ) ruled Thursday that airline passengers confronted with flight delays of two hours or more may receive compensation equal to that of passengers whose flights are cancelled. The flat-rate compensation ranges between 250 and 600 euros. The case arose under European Parliament and European Council Regulation (EC) No. 261/2004, which sets forth rules for compensation and assistance of airline passengers. The court found:Given that the damage sustained by air passengers in cases of cancellation or long delay is comparable, passengers whose flights are delayed and passengers whose flights are cancelled cannot be treated differently without the principle of equal treatment being infringed. That is a fortiori the case in view of the aim sought by Regulation No 261/2004, which is to increase protection for all air passengers. In those circumstances, the Court finds that passengers whose flights are delayed may rely on the right to compensation laid down in Article 7 of Regulation No 261/2004 where they suffer, on account of such flights, a loss of time equal to or in excess of three hours, that is to say when they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier.The judgment clarifies circumstances under which a "delay" or a "cancellation" occurs and the corresponding duties of airlines to affected passengers. A right to compensation does not arise if the airline can show "extraordinary" circumstances caused the delay. The task falls to national courts to determine the meaning of the ECJ ruling.The German and Austrian courts that initially referred the case to the ECJ are expected to review the decision. The ECJ ruling mirrors a 2008 ruling, which upheld the right of compensation to passengers whose flights are canceled. The legislation, which went into effect in 2005, requires airlines to compensate travelers for cancellations, delays, and denial of seats. It places the burden of proof on airlines if they wish to avoid payment. In 2006, the ECJ upheld the airline passenger regulations in a challenge brought by International Air Transport Association and the European Low Fares Airline Association, which argued that the law was too costly to implement and some conditions were outside of the airlines' control.