JURIST - Paper Chase

[JURIST] Judge Carl Barber of the US District Court for the Eastern District of Louisiana [official website] Thursday issued an order [text, PDF] that British Petroleum (BP) [corporate website] will be held liable for a portion of the damages owed by Transocean [corporate website] stemming from the Deepwater Horizon oil spill [BBC backgrounder; JURIST news archive]. BP will be required to indemnify Transocean against damages created by the pollution itself that are awarded throughout the litigation [materials] pending against it. BP will not be required to pay an punitive damages or civil fines as a result of these suits. The court did not rule as to whether BP or Transocean would be held strictly liable, negligent or grossly negligent for the equipment failure and subsequent oil spill that created the pollution. Transocean is the company that owned the Deepwater Horizon oil rig that was contracted by BP, which subsequently caused the oil spill. This ruling is separate from a ruling issued [JURIST report] by Barber in August, which permits punitive damages against BP, but that ruling pertained to claims brought against BP directly.

Last summer Barber dismissed [JURIST report] consolidated racketeering claims against BP in connection with the spill brought under the US Racketeer Influenced Corrupt Organizations (RICO) [text]. In February of last year, Mississippi Attorney General Jim Hood [official website] asked the district court to order the Gulf Coast Claims Facility (GCCF) [official website] to fulfill its legal obligations to aid victims of the spill and to remedy inadequate claims mechanisms [JURIST report]. The GCCF began processing claims in August following the completion of negotiations [JURIST reports] between BP and the US Department of Justice (DOJ) [official website]. Former Alabama Attorney General Troy King filed a lawsuit [JURIST report] in August 2010 against BP for damages to the state's coast and economy, claiming that the oil giant has failed in its efforts to accept responsibility for the oil spill. In July 2010 a class action lawsuit [JURIST report] was filed against the company in a Louisiana state court alleging that its negligent actions led to the spill and that BP was further negligent in its oversight of the cleanup effort, resulting in volunteers falling ill due to inadequate protective equipment. One month prior, US Attorney General Eric Holder [official website] announced that the DOJ would review whether any criminal or civil laws were violated [JURIST report] by BP.

[JURIST] Guatemalan Judge Carol Flores ruled Thursday that ex-dictator Rios Montt must stand trial for charges of genocide and crimes against humanity. The judge heard the prosecutor's initial statements Wednesday and decided Thursday that the evidence was sufficient to go to trial. Montt is being charged for crimes committed throughout the country's 36-year civil war [BBC timeline], which officially ended in 1996. Montt was a general in the military who became dictator after a coup in 1982 but lost power a year later as a result of another coup. His charges are based on 72 incidents that caused 1,771 deaths under Montt's military command. Judicial officials decided Saturday that Montt will be forced to testify [JURIST report] at his trial.

The Guatemalan Civil War resulted in more than 200,000 deaths, 95 percent of which the military was responsible for according to a UN report [text, in Spanish]. The majority of those who were killed were part of Guatemala's indigenous Mayan population. Two former police officers [JURIST report] and four former soldiers [JURIST report] were convicted in 2010 and 2011 of charges relating to these crimes. Spain attempted to charge Montt [JURIST report] with war crimes in 2008, but failed because it lacked jurisdiction over the case. Montt had ignored warrants [JURIST report] put out by Spain for his arrest in 2006 because he claimed he was not aware of any crimes committed by his men during the war.

[JURIST] US Representative Edward Markey (D-MA) [official website; press release] and seven other lawmakers Thursday sent a letter [text, PDF] to Google CEO Larry Page [NYT backgrounder] containing 11 questions regarding consumer privacy rights as affected by Google's new privacy policies [corporate website]. The letter states that the privacy policy and Google's consolidated data sharing system raise questions about whether consumers can opt out of the new system, either globally or on a product-by-product basis. As Co-Chairman of the Congressional Bipartisan Privacy Caucus, Markey also expressed concerns as to whether Google's new policies violate the settlement [JURIST report] reached with the Federal Trade Commission (FTC) [official website] last year:

Google's new privacy policy should enable consumers to opt-out if they don't want their use of YouTube to morph into YouTrack. Consumers—not corporations—should have control over their own personal information, especially for children and teens. I plan to ask the Federal Trade Commission whether Google's planned changes to its privacy policy violate Google's recent settlement with the agency.

Markey emphasized the degree to which consumers rely on Google and the importance of protecting the user's privacy. The FTC settlement resulted after privacy concerns arose over Google's controversial Buzz social networking tool rollout. According to its statement announcing the new privacy policy to members, Google's policy changes are directed across all of their services with the intention of creating a better user experience.

Google has had several legal battles in the last year, with consumer privacy rights often at issue. In August the Department of Justice (DOJ) [official website] announced that the agency had reached a $500 million settlement [press release] with Google for permitting Canadian pharmaceutical companies to advertise to and target US consumers. In July a federal judge extended settlement negotiations [JURIST report] over a 2005 copyright suit filed against Google over its Google Books [corporate website] book scanning project. Also in July another federal judge ruled that Google could appeal a decision permitting a wiretapping lawsuit [JURIST report] over Google's Street View [corporate website] service to proceed. Google was accused of violating user privacy by using WiFi networks to collect data for the service, a charge that came as a result of a multistate investigation that began in June of 2010. There have been international rulings on the Street View service as well. A Swiss court ruled the service constituted a violation of privacy, while a German court ruled it did not [JURIST reports].

[JURIST] Amnesty International (AI) [advocacy website] Thursday reported the recent deaths of several Libyan detainees who were apparently tortured while in custody [press release]. The deaths come amid allegations of widespread torture and ill-treatment of detainees accused of being pro-Gaddafi loyalists and fighters during the Libyan conflict [JURIST backgrounder] last year. AI conducted extensive interviews with detainees in and around Tripoli, Misrarah and Gheryan, many of whom showed visible marks indicative of torture, and whose accounts of maltreatment are consistent with their patterns of injury. AI reports that both official military and security entities as well as the multitude of unrecognized armed militias are responsible for the torture and subsequent deaths. Despite repeated requests by AI since May and its October report calling for an end to the torture of Libyan detainees [report, PDF; press release], AI claims the new Libyan government has not taken adequate steps to investigate such human rights violations:

So far there has been a complete failure on the part of those in power to take concrete steps to end torture and other ill-treatment of detainees and to hold accountable those responsible for such crimes. We don't underestimate the challenges faced by the Libyan transitional authorities in establishing control over the multitude of armed militias operating throughout the country, but we must see them taking decisive action on torture. In the interests of building a new Libya based on respect for human rights, this issue cannot be left at the bottom of the pile.

AI concludes its most recent report by urging the Libyan government to abolish all non-official detention facilities and bring them under the control of legal authorities, to conduct investigations into the alleged torture practices and other maltreatment, to remove from detention facilities persons engaged in such activities and to provide detainees access to fair trials, lawyers and medical support.

Allegations of war crimes and human rights violations have been widespread in the aftermath of the Libyan conflict. On Thursday UN High Commissioner for Human Rights Navi Pillay [official website] expressed concern [JURIST report] over human rights violations in the country, urging that all detention facilities to be brought under the control of the Ministry of Justice and the General Prosecutor's Office. Last week a coalition of Middle Eastern human rights organizations accused [JURIST report] the parties involved in the Libyan conflict to be in violation of human rights by using excessive force against protesters and cruel treatment of detainees. In September the Libyan NTC vowed to investigate allegations of human rights after AI [advocacy website] published a report [JURIST report] alleging that both sides of the Libya conflict are responsible for human rights abuses and warning the NTC to act quickly to investigate the charges. In August Libyan Prime Minister Al Baghdad Ali Al-Mahmoudi requested that the UN create a "high-level commission" to investigate human rights abuses allegedly committed by NATO [JURIST report].

[JURIST] Brazil prosecutors plan to file criminal charges, in addition to the $11 billion civil suit, against Chevron [corporate website] officials for the 2,400 barrel oil spill [Global Voices backgrounder] off the coast of Brazil in the Campos Basin in November. Brazilian officials state that Chevron acted irresponsibly [Reuters report] and took substantial risks in the Frade oil field in the Campos Basin. Up to 12 Chevron officials are expected to be indicted. In contrast, British Petroleum (BP) [corporate website] agreed to set aside $20 billion [JURIST report] for the Deepwater Horizon oil spill [BBC backgrounder; JURIST news archive], which was 1,000 times larger than the Frade spill, and no BP officials have faced criminal charges.

Chevron is also currently appealing an $18 billion fine [JURIST report] for pollution in the Amazon jungle. The judgment against Chevron was upheld in January by a three-judge panel of the Provincial Court of Justice of Sucumbios in Lago Agrio, Ecuador. The $18 billion fine, one of the largest in the history of environmental contamination suits, was originally set at $8.6 billion [JURIST report] but was more than doubled for Chevron's refusal to pay "moral reparations" to the Ecuadorian government, as required by the original ruling. The Amazon Defense Coalition [advocacy website], plaintiffs in the suit, have responded that the first judgment was a reaffirmation of how Chevron's greed and criminal misconduct in dumping billions of gallons of toxic waste into the river has led to death and disease. Damages were initially awarded in February by the Provincial Court of Justice of Sucumbios which found that Texaco, which was acquired by Chevron in 2001, polluted large areas of the country's rain forest.

[JURIST] The US Court of Appeals for the Second Circuit [official website] on Thursday lifted [opinion, PDF] an injunction won by Chevon Corporation [official website] to block enforcement of what the US oil company claims is a fraudulent, multibillion-dollar judgment in Ecuador for polluting the Amazon jungle. In reversing the decision [opinion, PDF] made by the US District Court for the Southern District of New York [official website], the Second Circuit held that Chevron may not challenge the approximately $18 billion Ecuadorian judgment against it before enforcement of that judgment has actually been sought by the Ecuadorian plaintiffs. In its interpretation of the Uniform Foreign Money-Judgments Recognition Act [text, PDF], the court concluded that judgment-debtors like Chevron can challenge a foreign judgment's validity under the Act only defensively and in response to an attempted enforcement. The court found that an effort of enforcement by the Ecuadorian plaintiffs had not yet been undertaken anywhere, and might never be undertaken in New York. While both Chevron and the Ecuadorian plaintiffs have yet to comment on the decision, Chevron has long contended [press release] that it has never conducted oil operations in Ecuador and that the allegations of environmental and social harm in the Amazon are therefore false. The Second Circuit's ruling was in line with an earlier decision issued in September.

Just last week, Chevron filed [JURIST report] a similar appeal [text, PDF, in Spanish] with Ecuador's National Court of Justice to reconsider the original decision [press release] by an Ecuadorian judge requiring the oil company to pay roughly $18 billion in damages for its role in polluting the Amazon. Specifically, Chevron argued that the judge's decision violated Ecuador's constitution because the court failed to correct or punish the alleged fraud and corruption committed by plaintiffs' attorneys. Chevron also contended that because it inherited the case from Texaco, an oil company who was released from such liability by Ecuador in the 1990s, it too should be released from liability. The judgment was originally upheld in January [JURIST report] by a three-judge panel of the Provincial Court of Justice of Sucumbios in Lago Agrio, Ecuador. Though the fine was initially set at $8.6 billion [JURIST report], it was later more than doubled for Chevron's refusal to pay "moral reparations" to the Ecuadorian government, as required by the original ruling. The Amazon Defense Coalition [advocacy website], the Ecuadorian plaintiffs, have said that the first judgment was a reaffirmation of how Chevron's greed and criminal misconduct in polluting the region has led to death and disease. Damages were initially awarded last February by the Provincial Court of Justice of Sucumbios which found that Texaco, acquired by Chevron in 2001, polluted large areas of the country's rain forest.

[JURIST] The Minnesota Supreme Court [official website] ruled Wednesday that a Minnesota statute requiring people convicted of crimes to submit a DNA sample does not violate [opinion, PDF] the Fourth Amendment [text] right to unreasonable search. The Minnesota law [text], which was enacted in 2010, requires an offender to submit a DNA test, upon sentencing, before release from prison and upon transfer from another state. The appellant had been charged with a felony but agreed to take a sentence reduction in response to entering a guilty plea. He claimed that the DNA requirement violated his equal protection and should be considered an unreasonable search. The district court and the appellate court rejected that argument, and he appealed to the state's highest court. In Wednesday's opinion Justice Dietzen agreed with the lower court and held such a requirement was not a violation.

The State's legitimate governmental interests outweigh appellant's reduced expectation of privacy following a misdemeanor conviction arising out of the same set of circumstances as his felony charge. We conclude that the physical intrusion of Johnson's bodily integrity to acquire the DNA sample is minimal, especially when compared to the other intrusions Johnson is subjected to as part of his probation.

In the dissent, Justice Meyer stated that the collection of DNA constituted an intrusion upon personal security and dignity and instead found the privacy invasion highly intrusive. He would have found the DNA requirement to be unconstitutional when applied to someone only convicted of a misdemeanor.

In August 2011 a California Appeals Court struck down the state law [JURIST report] that required DNA samples be taken broadly from any adult arrested or charged with a felony. US Attorney General Eric Holder instructed federal prosecutors in November 2010 to use DNA evidence as much as possible [JURIST report], reversing the Bush administration policy. The US District Court for the Eastern District of California upheld the constitutionality [JURIST report] of mandatory DNA collection for all persons arrested or detained under federal authority in May 2009.

[JURIST] A media adviser to Iraqi Prime Minister Nouri al-Maliki [official website, in Arabic; JURIST news archive] said Thursday that the government will take legal action on behalf of the victims of the November 2005 Haditha killings [JURIST news archive], in which 24 Iraqi civilians were killed. Government spokesman Ali al-Moussawi expressed displeasure [Reuters report] with the outcome of the investigation and prosecutions in the US military court. On Tuesday, US Staff Sgt. Frank Wuterich [advocacy website] pleaded guilty [JURIST report] to the charge of negligent dereliction of duty, making him the only marine convicted of misconduct related to the killings. Eight marines were originally charged in relation to the killings, but in six cases charges were dismissed and one marine was acquitted. Earlier this week, many Iraqis were outraged [Reuters report] by the lenient deal given to Wuterich, whose conviction carries a maximum sentence of three months in jail. Al-Moussawi did not specify what legal action the Iraqi government might take.

Wuterich's guilty plea marks the end of the final court-martial resulting from a five-year investigation into the 2005 Haditha killings. Wuterich was denied a motion to dismiss [JURIST report] his charges in 2010. His trial was postponed in 2008 [JURIST report] after a judge decided to throw out a subpoena for unaired footage of a CBS interview with Wuterich that prosecutors believed could have proven his guilt. Charges against Lt. Colonel Jeffrey Chessani [JURIST news archive] were dropped [JURIST report] in June 2008, the same month 1st Lt. Andrew Grayson [JURIST news archive] was acquitted [JURIST report] of all charges against him relating to the incident. In August 2007, charges against Lance Cpl. Justin Sharratt and Capt. Randy W. Stone were dismissed [JURIST report]. In 2007, an official report on the Haditha incident by US Army Major General Eldon Bargewell showed that there was "serious misconduct" [JURIST report] at all levels of the chain of command.

[JURIST] UN High Commissioner for Human Rights Navi Pillay [official website] addressed [statement] the UN Security Council Wednesday, expressing concern over alleged current human rights violations in Libya. Pillay first noted that the Libyan National Transitional Council (NTC) [official website] has expressed their commitment to human rights and has taken encouraging steps in that direction in the form of legal reform and new legislation. However, the interim government still has not gained effective control over the revolutionary brigades and a concern remains over the conditions of detention and treatment of detainees held by these brigades:

The [International Committee of the Red Cross] visited over 8,500 detainees in approximately 60 places of detention between March and December 2011. The majority of detainees are accused of being Gaddafi loyalists and include a large number of sub-Saharan African nationals. The lack of oversight by the central authorities creates an environment conducive to torture and ill-treatment. My staff have received alarming reports that this is happening in places of detention that they have visited.

She urged that all detention centers be brought under the control of the Ministry of Justice and the General Prosecutor's Office. Pillay welcomed a commitment to transitional justice to address both abuses of the past and those committed during the conflict.

Allegations of war crimes and human rights violations have been widespread in the aftermath of the Libyan conflict [JURIST backgrounder]. Earlier this month Middle East rights groups alleged human rights violations [JURIST report] and that all parties involved, including the North Atlantic Treaty Organization (NATO) [official website], committed acts ranging from use of excessive force against protesters to cruel and inhuman treatment of prisoners during detention. They also urged support to the Libyan authorities in the implementation of section 12 of the UN Security Council Resolution 2009 [text in PDF]. In September 2011, the Libyan NTC vowed to investigate allegations of human rights after Amnesty International (AI) [advocacy website] published a report [JURIST report] alleging that both sides of the Libya conflict are responsible for human rights abuses and warning the NTC to act quickly to investigate these allegations. In August, Physicians for Human Rights (PHR) [advocacy website] reported [text, PDF] Libyan troops used children as human shields [JURIST report] to deter attacks by NATO. That same month, the Libyan Prime Minister Al Baghdad Ali Al-Mahmoudi requested that the UN create a "high-level commission" to investigate alleged human rights abuses [JURIST report] by NATO.

[JURIST] South Carolina Attorney General Alan Wilson [official website] has filed an appeal in the US Court of Appeals for the Fourth Circuit [official website] asking the court to overturn the decision to block provisions of the state's new controversial immigration law [SB 20]. The state is asking the court to overturn the district court ruling blocking two provisions of the law and to allow the entirety of the law to take effect. The request comes after a judge for the US District Court for the District of South Carolina [official website] placed a hold on the lawsuit [JURIST report] over the immigration law pending the outcome of a similar case to be heard by the US Supreme Court [official website]. The Supreme Court agreed [JURIST report] in December to rule on Arizona's controversial immigration law granting certiorari [JURIST report] in Arizona v. United States [docket] to determine if Arizona's law is preempted by federal law. The South Carolina law was scheduled to take effect on January 1.

In December of last year, a federal judge blocked [JURIST report] portions of the South Carolina law. Judge Richard Gergel blocked the provision that requires police to check immigration status, finding, "[t]his state-mandated scrutiny is without consideration of federal enforcement priorities and unquestionably vastly expands the persons targeted for immigration enforcement action. He also blocked the provision that outlaws harboring or transporting an illegal immigrant, finding a likelihood of irreparable harm. Similar immigration laws are being challenged throughout the US. Also in December, Alabama and Georgia filed motions in the US Court of Appeals for the Eleventh Circuit [official website] seeking to stay proceedings [JURIST report] on challenges to their immigration laws pending the Supreme Court ruling in Arizona v. United States. A challenge is also pending to an immigration law in Utah, and an Indiana law has been blocked [JURIST reports] by a federal judge.

[JURIST] The Constitutional Court of Romania [official website, in Romanian] on Wednesday ruled that a law allowing local and parliamentary elections to be held at the same time is unconstitutional. The Romanian Parliament [official website, in Romanian] passed the law in December [AP report], but objections from opposition leaders and anti-government protesters followed. The opposition argued that the law would facilitate fraud, cheating and confusion in the election process, while the government claimed the law would cuts costs by permitting one ballot for two elections. After the ruling, Romanian President Traian Basescu [official website, in Romanian] defended his administration [speech text, in Romanian] amid protests against the government's education, justice, criminal and economic policies.

Romanian elections have garnered discontent in recent years. The high court declared [press release, PDF; in Romanian] incumbent Basescu winner of the country's disputed presidential election [JURIST report] in December 2009. The court unanimously rejected a complaint by Basescu's opponent, Social Democrat Mircea Geoana [campaign website, in Romanian], to declare the results of the runoff election invalid because of allegations of voter fraud and bribery. After the first round of elections in November produced no clear winner, Basescu and Geoana faced a runoff election. Official results showed that Basescu had won by a mere 70,000 votes, garnering 50.3 percent of the total votes, and the court ordered election officials to recount [JURIST report] 138,000 voided ballots. In 2007, Basescu was reinstated [JURIST report] after the constitutional court certified results of a referendum where 74 percent of voters rejected Basescu's impeachment [JURIST report].

[JURIST] The Court of Bosnia and Herzegovina (BiH) [official website] on Wednesday upheld the conviction [JURIST report] and 31-year sentence of Radomir Vukovic for his part in the 1995 Srebrenica massacre during the Bosnian civil war [JURIST news archives]. While Vukoic's appeal was denied, Zoran Tomic won his appeal on a lack of evidence. As a member of the 2nd Sekovici Special Police Detachment, the court found that Vukovic participated in executing 1,000 Bosniak men who were imprisoned in a warehouse. This was Vukovic's final appeal.

Earlier this week, convicted Serbian war criminal Radovan Stankovic [JURIST report] was arrested in BiH after being on the run since May 2007 when he escaped from a Bosnian prison. Stankovic was convicted of multiple war crimes [JURIST report] in 2006, including rape, enslavement and torture. Last month, the US extradited Rasema Handanovic [JURIST report], a woman accused of killing Bosnian Croat civilians during the Bosnian Civil War. A number of cases have been opened in relation to the Bosnian Civil War. The Court of BiH confirmed the indictment [JURIST report] of former police officer Bozidar Kuvelja in March for his role in a 1995 massacre. In February, French authorities arrested Milorad Momic [JURIST report] under an international arrest warrant for his suspected involvement in war crimes. Last August, Spanish officials extradited accused Montenegrin war criminal [JURIST report] Veselin Vlahovic, known as the "monster of Grbavica," to Sarajevo.

[JURIST] The Illinois Supreme Court [official website] on Tuesday authorized [order, PDF] the use of television cameras and other recording devices in state courts [press release, PDF]. The order permits "extended media coverage" in courtrooms, which entails broadcasting of proceedings by the use of television, radio, photographic or recording equipment for the purpose of gathering and disseminating news to the public. While Illinois has permitted the use of news cameras in its Supreme Court and appellate courts since 1983, it has not allowed news cameras in trial courts until this decision. Illinois Supreme Court Chief Justice Thomas Kilbride championed the new policy:

This is another step to bring more transparency and more accountability to the Illinois court system. The provisions of this new policy keep discretion in the chief circuit judge and the trial judge to assure that a fair and impartial trial is not compromised, yet affords a closer look at the workings of our court system to the public through the eyes of the electronic news media and news photographers.

Prior to the order, Illinois was one of 14 states that either banned or severely restricted camera use in trial courtrooms.

The presence of cameras and other recording devices in courtrooms has generated substantial controversy both in the US and abroad. In December, the US Senate Judiciary Committee returned to the longstanding debate [JURIST report] over whether to televise the proceedings of the US Supreme Court [official website], including whether Congress, as an equal branch of government, has the authority to require the court to admit cameras. In November, C-SPAN [official website] asked [letter text, PDF] the US Supreme Court to drop its ban on cameras in the courtroom when it hears arguments over the Patient Protection and Affordable Care Act (PPACA) [JURIST news archive]. In September, the UK Justice Secretary announced [JURIST report] that cameras would be allowed in UK and Wales courts in an effort to increase judicial transparency. In October 2010, a coalition of 37 public interest groups urged the US Senate to permit television coverage of Supreme Court proceedings [JURIST report]. In September 2010, US Federal judges reached an agreement [JURIST report] on a pilot project to allow certain civil trials to be televised.

[JURIST] A court in Montenegro on Wednesday sentenced four former Yugoslav People's Army (JNA) soldiers to up to four years in prison for war crimes committed during the Croatian conflict. In a retrial of a 2010 case, the court found the four defendants guilty of torturing prisoners [RFE/RL report] at a detention camp in Morinj between 1991 and 1992. The defendants were four of the six lower-ranking JNA soldiers who were convicted in May 2010 [Reuters report] for the torture of Croatian prisoners detained during a conflict in Dubrovnik. This decision was overturned on appeal [SETimes.com report], and two defendants were acquitted in the retrial.

The International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] continues to prosecute former high-ranking Yugoslav army soldiers for war crimes. Last September, ex-Yugoslav army chief Momcilo Perisic [ICTY profile, PDF; JURIST news archive] was convicted for crimes against humanity and war crimes [JURIST report], committed during the wars in Bosnia and Croatia and sentenced to 27 years in prison. Former Yugoslav National Army officer Miroslav Radic [Trial Watch backgrounder], was acquitted of war crimes charges [JURIST report] brought by the ICTY in 2007. In 2009, Radic sued Serbia [JURIST report] for the four years and six months he was detained during his trial by the ICTY.

[JURIST] The United Nations (UN) [official website] on Wednesday refused to replace a judge presiding over investigations at the Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website] after Cambodia attempted to block him. Laurent Kasper-Ansermet is the judge tasked with investigating two possible suspects believed to be involved in the deaths of around 1.7 million people during the reign of the Khmer Rouge [BBC backgrounder] regime. The investigation relates to ECCC cases 003 and 004 [materials]. The Cambodian government strongly opposes the investigation into the suspects' involvement with the Khmer Rouge. Cambodia attempted to block Kasper-Ansermet's return to the country under an agreement between the UN and the Cambodian government. Cambodian officials said they believe they have the authority to reject investigating judges they deem unsuitable. Cambodia says Kasper-Ansermet is unsuitable to continue the investigation [Reuters report] because he used his Twitter account to comment on the cases. According to the UN, the agreement between the Cambodian government and the UN gives "full authority to operate as the international investigating judge."

Last week, the UN expressed concern [JURIST report] over Cambodia's decision to not appoint the reserve judge Kasper-Ansermet to the ECCC after the previous judge, Siegfried Blunk, resigned [JURIST report] in October. ECCC judges, including Blunk, have been criticized for allegedly failing to conduct impartial investigations. Cambodia has argued that the trial of former Khmer Rouge leaders is a Cambodian issue and should not be a matter of international concern. Also in October, defense lawyers for accused Khmer Rouge leader Nuon Chea filed a lawsuit [JURIST report] against Cambodian Prime Minister Hun Sen [BBC profile] for interfering with the UN-backed war crimes tribunal. Nuon's lawyers accused the prime minister of criminally conspiring to block some of the defense witnesses from testifying [Reuters report] and consequently interfering with his right to a fair trial. In September, the ECCC ordered the trials be split into a series of smaller trials [JURIST report].

[JURIST] A group of Maldives lawyers this week submitted to the International Criminal Court (ICC) [official website] the controversial case of detained Maldives Judge Abdulla Mohamed, calling Mohamed's continued detention a violation of the International Convention on the Protection of all Persons against Enforced Disappearance [text]. The legal team is contesting [Minivan News report] the conditions of Mohamed's arrest and subsequent detention [JURIST report] by the Maldives National Defence Force (MNDF) after the judge attempted to block his own High Court police summons pertaining to allegations of corruption and political bias in his professional conduct. The national Judicial Services Commission (JSC) has stated that the MNDF does not have legal authority over the judiciary [HaveeruOnline report], a responsibility claimed exclusively by the JSC itself. On Tuesday the Maldives Attorney General and JSC member Abdulla Muizzu gave his first interview since the arrest [HaveeruOnline report], but chose to confine his remarks to addressing the JSC's failure to effectively address various complaints against Mohamed's conduct, refusing entirely to address the constitutional issues pertaining to the judge's actual arrest. The JSC has appealed an earlier Civil Court injunction [Minivan News report] preventing the commission from taking action against Mohamed at the High Court, and is now investigating all previously submitted complaints against Mohamed. Violent anti-government protests have left several injured [HaveeruOnline report], including a journalist badly beaten Monday at a rally near the camp of the ruling Maldivian Democratic Party. While opposition parties have termed Mohamed's arrest a "kidnapping" and claimed his continued detention constitutes a "crime against humanity" under the ICC's jurisdiction, the ICC limits itself under the Rome Statute to only the most serious international crimes.

This week the Maldives Minister of Foreign Affairs [official website] requested the UN help resolve [JURIST report] the situation, which they are calling a judicial system failure. The Maldives has faced ongoing political difficulties following the adoption of its constitution [JURIST report] in late 2008. President Mohamed Nasheed [official website] defeated longtime political opponent Maumoon Abdul Gayoom [BBC profile], who had jailed him numerous times during his 30-year rule. However, opposition legislators have blocked the ruling party's legislative agenda, leaving certain crucial provisions of the new constitutional system unestablished. This resulted in the resignation of Nasheed's entire cabinet [BBC report] in June 2010. The Maldives Constitution [text, PDF] provides for multi-party elections, an independent judiciary and grants more authority to the legislature. It also enumerates fundamental rights of citizens and establishes several special commissions on issues relating to human rights and corruption. The new constitution was drafted in response to international criticism [AI report, PDF] of 2003 government actions against protesters of prison conditions in the country.

[JURIST] A federal judge in the US District Court for the District of Montana [official website] on Friday ruled [opinion, PDF] that the state's medical marijuana [JURIST archive] law does not protect providers of the drug from federal prosecution. Judge Donald Molloy [official profile] dismissed a civil lawsuit [AP report] brought by 14 medical marijuana providers who had all been raided by federal authorities in the last year. The plaintiffs argued that the federal raids violated their protection under the state law. Molloy, however, found that providers could be prosecuted under federal law, following the precedent set by the Supreme Court in Gonzales v. Raich [opinion] in 2005. In that case, the Court held that the Supremacy Clause applies to medical marijuana laws. The Montana law [SB 423, text], which was enacted in 2011, allowed for the cultivation and production of the drug as long as a registration card was obtained. Molloy held that the Supremacy Clause allowed federal law to trump the state law.

Federal courts have been cracking down on state medical marijuana laws recently. Earlier this month the American Civil Liberties Union (ACLU) [advocacy website] was granted a motion to dismiss [JURIST report] a lawsuit brought by the Arizona Governor. The Governor believed an Arizona medical marijuana law placed lawmakers at risk of federal prosecution for implementing the law. In October, medical marijuana advocates filed suit [JURIST report] in a California federal court seeking relief against the federal government for its crackdown on marijuana dispensaries in the state. In June, a judge in Ontario stayed a ruling [JURIST report] finding that the country's marijuana laws were unconstitutional. In January 2010, the California Supreme Court [official website] overturned [JURIST report] a 2003 law limiting the amount of marijuana that may be possessed under the state's Medical Marijuana Program (MMP) [materials].

[JURIST] The Humanitarian Law Center (HLC) [advocacy website], a Serbian human rights group, alleged [press release, in Serbian] on Tuesday that Serbian General Ljubisa Dikovic [official profile, in Serbian] committed war crimes [JURIST news archive] in 1998 and 1999 during the war in Kosovo [JURIST news archive]. The HLC pointed to evidence uncovered during the trial of former Serbian president Milan Milutinovic by the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website; JURIST news archive]. They noted that Dikovic was in command of the 37th Motorized Brigade, in whose zone of control the ICTY found a "number of heavy and massive war crimes committed." The HLC alleged that, although Dikovic had a responsibility to prevent the war crimes, he did not act.

The ICTY is currently preparing for the trial of former Serbian general and alleged war criminal Ratko Mladic [ICTY backgrounder, PDF; JURIST news archive]. The trial is set to begin in March [JURIST report]. The ICTY had previously tried [JURIST news archive] former Yugoslav President Slobodan Milosevic [JURIST news archive], but ended that trial after his death [JURIST report] in custody in 2006.

[JURIST] Field Marshal Hussein Tantawi, head of Egypt's Supreme Council of the Armed Forces (SCAF) [NYT backgrounder] announced Tuesday that Eygpt's state of emergency [JURIST news archive] that has been in effect for nearly 30 years would be lifted later this week. Tantawi did indicate that some of the powers from the state of emergency would remain in effect [AP report] against certain crimes. Tantawi made the announcement [BBC report] on the anniversary of the start of the Egyptian revolution [JURIST news archive], which led former Egyptian president Hosni Mubarak [Al Jazeera profile; JURIST news archive] to step down from the office [JURIST report] in February of last year. The SCAF had previously tried to lift the state of emergency in August but reinstated in a month later after an attack on the Israeli Embassy [JURIST reports].

Last week, a report from Human Rights Watch [advocacy website] called on [JURIST report] Egypt's newly elected parliament to pursue an agenda to reform nine areas of Egyptian law that impede freedom and restrict rights. Among the suggestions was a call to lift the state of emergency. Earlier in January, Egyptian prosecutors began their case [JURIST report] against Mubarak, who is facing charges of complicity by ordering the killings of at least 840 protesters [JURIST report] during the revolution. Some commentators have recommended [JURIST op-ed] that the SCAF separate its economic and political power to allow for greater prosperity in Egypt.

[JURIST] The Minnesota Court of Appeals [official website] ruled [opinion, PDF] Monday that a trial court must review a lawsuit challenging a Minnesota law prohibiting gay marriage [Section 517.03 text]. The plaintiffs are three same-sex couples who were married in Canada and had been denied marriage licenses by Minnesota due to a statewide ban on same-sex marriage [JURIST news archive]. Plaintiffs argued [appellate brief, PDF] that Minnesota violated their equal protection rights by refusing to issue them marriage licenses. The appeals remanded the case to the trial court because the trial court had not adequately addressed plaintiffs' equal protection rights as well as a 1971 Minnesota case [Baker v. Nelson, PDF] that upheld the state's ban on same-sex marriage:

The district court failed to address appellants' challenges under the Minnesota Constitution. A proper analysis is necessary especially because the Minnesota rational-basis test for determining whether equal-protection rights have been violated is more stringent than the federal test. Additionally, the supreme court in Baker specifically stated that there was no guidance from decisions from the United States Supreme Court regarding whether the right to marry if a fundamental right of all persons and whether restricting marriage based solely on sex is "irrational and invidiously discriminatory."

No date has been set for the ensuing trial in district court.

It remains unclear if the court of appeals' decision to remand the case to the district court will help or hurt the plaintiffs. Phil Duran, the legal director of the gay rights group OutFront Minnesota [official website] declared [press release] that the decision could be a setback for same-sex marriage rights because the case could eventually be decided by the deeply conservative Minnesota Supreme Court. Douglas Benson, one of the plaintiffs in the case, took a more optimistic view, saying that the court of appeals' decision gives the plaintiffs momentum going forward in court [Minneapolis Star Tribune report]. Same-sex marriage is a particularly contentious issue in Minnesota this year, as voters will decide in November whether to accept or reject a constitutional amendment banning same-sex marriage [HF 1613 text; JURIST report].

[JURIST] UN High Commissioner for Human Rights Navi Pillay [official website] on Tuesday condemned [press release] Iraq's execution of 34 individuals, including two women, last week. All 34 executions occurred on a single day for crimes described as terrorism-related offenses [Iraq Ministry of Justice, in Arabic]. Iraq maintains the death penalty for even non-fatal crimes, but there has been no report of a single case in which the death penalty was pardoned, according to Pillay:

The total number of individuals sentenced to death in Iraq since 2004 is believed to stand at more than 1,200. The total number actually executed since then is not known, although at least 63 individuals are thought to have been executed in the past two months alone (since 16 November). There are around 48 crimes for which the death penalty can be imposed in Iraq, including a number of non-fatal crimes such as—under certain circumstances—damage to public property.

Iraq's current system of death penalty and its far-reaching coverage of offenses that are subject to death penalty creates doubt on the due process and fairness of trials in the country. The High Commissioner urged the government to establish an immediate moratorium on the use of the death penalty.

In 2007, the UN General Assembly [official website] approved a resolution calling for a worldwide moratorium [JURIST report] on the death penalty. The resolution was reaffirmed twice by resolutions A/RES/63/168 and A/RES/65/206 [materials] in 2008 and 2010, respectively. It was criticized by countries [JURIST report] that supported the use of death penalty [JURIST news archive], alleging that the resolution would infringe nations' sovereignty. Iraq, one of the countries that did not implement the moratorium, has been subject to criticism for violating various human rights including unlawfully detaining and repeatedly torturing thousands of detainees without warrants [JURIST reports].

[JURIST] The US Court of Appeals for the Fourth Circuit on Monday upheld the dismissal [opinion, PDF] of a lawsuit brought by US citizen and convicted terrorist Jose Padilla [BBC profile; JURIST news archive], who alleged that he had been illegally detained at a military jail in South Carolina. Claiming nominal monetary redress against Secretary of Defense Leon Panetta [official profile] and former secretary Donald Rumsfeld [BBC profile], among others, Padilla argued that the Defense Department's methods of detaining him as an "enemy combatant" were unconstitutional. The Fourth Circuit disagreed and held that Padilla could not use a lawsuit seeking monetary damages to review an issue involving national security and that the judiciary was not the proper forum to rule on the legislature-adopted policies responsible for his detention. The court reasoned that allowing such lawsuits "would expose past executive deliberations affecting sensitive matters of national security to the prospect of searching judicial scrutiny." The American Civil Liberties Union (ACLU) [advocacy website], which brought the suit on Padilla's behalf, was quick to express its discontent with the ruling [statement]:

Today is a sad day for the rule of law and for those who believe that the courts should protect American citizens from torture by their own government. By dismissing this lawsuit, the appeals court handed the government a blank check to commit any abuse in the name of national security, even the brutal torture of a US citizen on US soil. This impunity is not only anathema to a democracy governed by laws, but contrary to history's lesson that in times of fear our values are a strength, not a hindrance.

Padilla's case, filed pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics [opinion], was originally dismissed [JURIST report] in February by the US District Court for the District of South Carolina [official website], which ruled that the defendants had qualified immunity under the circumstances. Padilla was arrested in 2002 at Chicago's O'Hare International Airport and thereafter detained as an enemy combatant. He was convicted on terrorism charges in 2007 and sentenced [JURIST reports] to 17 years in prison.

This is the latest case involving the liability of government officials for their actions in the US War on Terror. In August, the US Court of Appeals for the Seventh Circuit [official website] ruled [JURIST report] that a torture lawsuit against former secretary Rumsfeld by two American citizens may proceed under the cause of action recognized in Bivens. Also in August, the US District Court for the District of Columbia [official website] allowed a lawsuit to be brought against Rumsfeld [JURIST report] by a former US military contractor who alleged that he had been tortured while imprisoned in Iraq. By contrast, the US Court of Appeals for the District of Columbia Circuit [official website] in 2011 upheld the dismissal [JURIST report] of a suit against Rumsfeld brought by Afghan and Iraqi citizens who claimed that they were illegally detained and tortured. Also in 2011, the US Supreme Court [official website] ruled that former US attorney general John Ashcroft [BBC profile; JURIST news archive] was immune from a suit [JURIST report] involving allegedly unconstitutional witness detention, and that he should be entitled to absolute immunity where there is no clear violation of established law.

[JURIST] The Canadian government on Monday deported Rwandan war crimes suspect Leon Mugesera, after a Quebec Superior Court [official website] judge ruled that the court did not have jurisdiction to rule on immigration cases. Mugesera, who has been fighting deportation from Canada since 1995, is a former Rwandan politician accused of delivering a speech in 1992 urging fellow Hutus to murder members of the Tutsi minority. Many Rwandans believe Mugesera's speech directly led to the mass killings [BBC report] which occurred during the 1994 Rwandan genocide [JURIST news archive]. The Canadian government originally sought to deport Mugesera in 1995 after they determined that he omitted material facts in his application for asylum. The government also determined that Mugesera should be deported because there was a reasonable basis to believe he had incited murder, genocide and crimes against humanity. In 2005, the Canadian Supreme Court ruled that Mugesera must be deported, although the Canadian government later indicated he would not be extradited unless the Rwandan government guaranteed not to seek the death penalty [JURIST reports] in the event of a conviction. In a final effort to avoid deportation, which some commentators had called "inevitable" [JURIST op-ed], Mugesera appealed to the UN Committee Against Torture [official website], claiming he would face torture and possible death if removed to Rwanda [Globe and Mail report]. Mugesera also asked the Canadian courts not to rule on his final appeals until the UN committee had reached its decision. Superior Court Judge Michel Delorme ruled that immigration issues must be determined by the federal courts [CTV Montreal report], not provincial courts, and that agreeing to hear the case would lead to forum shopping. Mugesera was deported hours after the court issued its final ruling.

While the Canadian government chose to pursue deportation of Mugesera, they have the authority under the country's Crimes Against Humanity and War Crimes Act [text, PDF] to prosecute individuals living in Canada who are suspected of involvement with genocide. In November 2009, Canadian prosecutors announced they were charging [JURIST report] Rwandan national Jacques Mungwarere under the law for his potential involvement in the Rwandan genocide. Mungwarere was the second man charged under the act. The first man charged under the act was Desire Munyaneza. In October 2009, Munyaneza was sentenced to life imprisonment [JURIST report] for war crimes committed during the Rwandan genocide. Munyaneza was convicted [JURIST report] in May 2009 of seven counts of genocide, crimes against humanity, and war crimes under the act. He was arrested [JURIST report] in 2005 by Canadian police after a five-year investigation. The trial, which was briefly postponed [JURIST report] after Munyaneza was beaten by a fellow prison inmate, lasted two years and included evidence from multiple nations. International legal observers expect Munyaneza's trial to set precedent for future war crimes litigation.

[JURIST] US Staff Sgt. Frank Wuterich [advocacy website] pleaded guilty [USMC case materials] Monday to the charge of negligent dereliction of duty, ending the final court-martial resulting from a five-year investigation into the 2005 deaths of 24 Iraqi civilians [BBC backgrounder]. Wuterich was charged with voluntary manslaughter, aggravated assault, reckless endangerment, obstruction of justice and dereliction of duty in court-martial proceedings that began less than two weeks ago. All of the charges except dereliction of duty have been dropped in return for his guilty plea. Wuterich was accused of overreacting [AFP report] to the death of another marine in a roadside bombing in Haditha, Iraq, and allegedly ordering his men to 'shoot first and ask questions later.' He sent his men into nearby houses to search for insurgents, which resulted in the deaths of the Iraqi civilians, including 10 women and children. Seven other marines were charged in 2006 with crimes relating to the incident, but in six cases charges were dismissed and one marine was acquitted. Wuterich will be sentenced by a military judge at a later date.

Wuterich was denied a motion to dismiss [JURIST report] his charges in 2010. His trial was postponed in 2008 [JURIST report] after a judge decided to throw out a subpoena for unaired footage of a CBS interview with Wuterich that prosecutors believed could have proven his guilt. Charges against Lt. Colonel Jeffrey Chessani [JURIST news archive] were dropped [JURIST report] in June 2008, the same month 1st Lt. Andrew Grayson [JURIST news archive] was acquitted [JURIST report] of all charges against him relating to the incident. In August 2007, charges against Lance Cpl. Justin Sharratt and Capt. Randy W. Stone were dismissed [JURIST report]. In 2007, an official report on the Haditha incident by US Army Major General Eldon Bargewell showed that there was "serious misconduct" [JURIST report] at all levels of the chain of command.

[JURIST] The second trial of Spanish Judge Baltasar Garzon [BBC profile; JURIST news archive] began on Tuesday before the Spanish Supreme Court [official website, in Spanish]. Garzon has been charged with abusing power [JURIST report] by opening an investigation into war crimes allegedly committed under Francisco Franco [BBC backgrounder] during the Spanish Civil War. In 2008, Garzon ordered the exhumation [JURIST report] of 19 mass graves in Spain in order to assemble a definitive national registry of Civil War victims, despite a 1977 law that provides amnesty for Franco-era crimes. Garzon has consistently defended [JURIST report] the validity of the investigation by insisting that he acted within the bounds of the law and appropriately applied the law at all times. Rights group Amnesty International (AI) [advocacy website] has condemned the trial [news release], calling it "a blow to human rights and efforts to obtain justice." The case is expected to last for weeks [Guardian report], and civil war survivors or relatives of those killed will present evidence. If convicted, Garzon could face a suspension of up to 20 years.

Last March, Garzon filed a petition [JURIST report] with the European Court of Human Rights (ECHR) [official website], challenging the 2010 abuse of power charges, for which he was suspended [JURIST report]. His petition follows the September 2010 decision of the Criminal Chamber of the Spanish Supreme Court, which unanimously confirmed [JURIST report] a lower court order that Garzon abused his power and must face trial. Garzon is widely known for using universal jurisdiction [AI backgrounder; JURIST news archive] extensively in the past to bring several high-profile rights cases, including those against Osama bin Laden and former Chilean dictator Augusto Pinochet. He is also facing two other trials, including one trial that began last week involving charges that he ordered the placement of wiretaps in jailhouses [JURIST report] to record conversations between inmates and their lawyers. The third trial, which has not started, involves bribery charges over money Garzon received for seminars conducted in the US.