[JURIST] The trial of former Yugoslav army chief of staff and general Momcilo Perisic [ICTY case information sheet; Trial Watch backgrounder], was delayed indefinitely [press release] Wednesday as there was a procedural glitch in the naming of judges at the International Criminal Tribunal for the Former Yugoslavia [official website]. Perisic was indicted before by ICTY in 2005 on charges [indictment, PDF] including murder, persecution on grounds of politics, race, or religion, and unjustifed attacks on civilians in the early 1990s in conflicts in Croatia and Bosnia-Herzegovina. As well as being held individually responsible for these acts, Perisic is also being charged with command responsibility for the actions of his subordinates under Article 7(3) of the ICTY Statute [official text]. ICTY spokesperson Nerma Jelacic said that the Tribunal was awaiting formal approval [press briefing] from the United Nations for assignment of judges to this trial. AFP has more. From Belgrade, Serbia, B92 has local coverage.

Perisic was the fourth Serbian general to surrender to the ICTY [JURIST report] when he did so in 2005. His surrender was under a policy initiated by Serbian Prime Minister Vojislav Kostunica [official profile] that encouraged voluntary surrender rather than controversial arrests.

[JURIST] The US Supreme Court [official website; JURIST news archive] on Wednesday declined to reconsider last term's decision in Kennedy v. Louisiana [Duke Law backgrounder; JURIST report], holding that Louisiana could not impose the death penalty for the rape of a child. The court voted 7-2 to reject federal and state prosecutors' petitions [JURIST report] for rehearing of the case. In the court's modified opinion [PDF text] released Wednesday, Justice Anthony Kennedy wrote in a footnote:

When issued and announced on June 25, 2008, the Court's decision neither noted nor discussed the military penalty for rape under the Uniform Code of Military Justice. ... In a petition for rehearing respondent argues that the military penalty bears on our consideration of the question in this case. For the reasons set forth in the [forthcoming] statement respecting the denial of rehearing ... we find that the military penalty does not affect our reasoning or conclusions.

[JURIST] The US Centers for Medicare and Medicaid Services (CMS) [official website] on Wednesday implemented regulations [text, PDF] denying hospitals payment for treating conditions caused by some common medical errors [HHS backgrounder]. Those regulations, announced [CMS press release] last year, contain a so-called "never list" of preventable conditions for which hospitals may bill neither Medicare nor patients, including certain hospital-acquired infections, bedsores and complications from incorrect blood transfusions. The Committee to Reduce Infection Deaths [advocacy group] was among the organizations welcoming the new regulations [press release] on Wednesday, but it noted that many state health care programs lack similar rules. The New York Times has more.

The new regulations were authorized by the Deficit Reduction Act of 2005 [text], which directed the US Department of Health and Human Services (HHS), which oversees Medicare, to identify reasonably preventable conditions that result in high-cost or high-volume treatment and additional government payments. CMS noted in the regulations that it selected only "conditions where, if hospital personnel are engaging in good medical practice, the additional costs of the hospital-acquired condition will, in most cases, be avoided." An influential report [text; press release] issued by the Institute of Medicine [organization website] in 1999 found that preventable medical errors result in as many as 98,000 deaths each year and cost the United States as much as $29 billion.

[JURIST] A US district judge on Tuesday refused to dismiss [decision and order, PDF] a lawsuit against the Palestine Liberation Organization (PLO) and the Palestinian Authority (PA) [CFR backgrounders] seeking damages for the injuries and deaths of US citizens in attacks in Israel. District Judge George B. Daniels [official profile] of the Southern District of New York [official website] rejected defense arguments that the Palestinian groups could not be sued under the Antiterrorism Act of 1991 (ATA) [text], which grants civil remedies to US citizens injured by acts of international terrorism. The defendants unsuccessfully argued that the court lacked subject matter jurisdiction in the case, that an Israeli court would be a more appropriate forum, and that they were entitled to immunity under the Foreign Sovereign Immunities Act of 1976 [text; US State Department backgrounder]. The defendants also contended that the attacks were acts of war, for which the ATA does not provide remedies. Rejecting that defense, Daniels wrote:

There has been no showing that the situs of the attacks were in any combat or militarized zone, or were otherwise targeted at military or governmental personnel or interests. Rather, plaintiffs allege that the attacks were intentionally targeted at the civilian population. They were purportedly carried out at locations where non-combatants citizens would be known to congregate, such as in the cafeteria on the Hebrew University campus and on a commercial passenger bus. Additionally, the use of bombs, under such circumstances, is indicative of an intent to cause far-reaching devastation upon the masses.... Such claimed violent attacks upon non-combatant civilians, who were allegedly simply going about their everyday lives, do not constitute acts of war for purposes of the ATA.

[JURIST] The Canadian Military Police Complaints Commission (MPCC) [official website] decided [PDF text] Tuesday to move forward with a public hearing investigating the country's military detainee transfer process in Afghanistan despite a move from the Canadian Department of Justice [official website] to block the inquiry [JURIST report]. MPCC Chair Peter A. Tinsley, issuing the decision pursuant to the National Defence Act [250.38 text], rejected the government's arguments that the MPCC's reach is limited to military policing issues and thus lacks jurisdiction to conduct the investigations that involve military operational decisions regarding detainee treatment:

I find, based on principles of statutory interpretation, that the Complaints Commission has jurisdiction over the second Detainee Complaint pursuant to section 250.18(1) of the National Defence Act and section 2 of the Complaints About the Conduct of Members of the Military Police Regulations (the “Conduct Regulations”). The allegations relate to the policing duties and functions of the military police, which includes “custody”. This interpretation is consistent with the purpose of the provisions establishing the Complaints Commission, which is to provide independent oversight of the conduct of members of the military police when engaged in policing duties or functions. The Attorney General's interpretation, if accepted, would significantly restrict, and perhaps eliminate, the scope of review by the Complaints Commission of essentially all military police conduct, without regard to the clear language and purpose of the Act. This is not consistent with the legislative purpose of the Act.

[JURIST] Russian President Dmitry Medvedev [official profile; JURIST news archive] on Tuesday pushed for [speech text] the adoption of sweeping anti-graft legislation [plan materials] while opening the first meeting of the newly-established Anti-Corruption Council [JURIST report]. Deflecting rumors that the legislation had stalled after the Russian conflict with Georgia [NYT report; JURIST conflict news archive], Medvedev described the urgency of the situation:

Corruption in our country has taken on not only massive dimensions and occurs on a massive scale, it has also become commonplace and routine – something that characterizes the lives of our citizens. And as you know, it is not banal bribes – regardless of their size – that I am referring to, but rather a serious illness which affects our economy and corrupts all of society. In this regard fundamentally lowering the level of corruption is, of course, a strategic challenge facing our country. The achievement of this goal is directly connected with the protection of property rights in Russia, strengthening the legal and judicial systems, and the expansion of free enterprise.

[JURIST] Judge Philip M. Pro of the US District Court for the District of Nevada [official website] issued an order [text, PDF] Tuesday granting a plaintiffs' motion for summary judgment and invalidating Nevada's so-called County Population Rule [NRS 295.012 text] as unconstitutional under the Fourteenth Amendment of the US Constitution. The order stems from a lawsuit [complaint, PDF] filed by the Marijuana Policy Project (MPP) [advocacy website] and the American Civil Liberties Union of Nevada (ACLU-NV) [advocacy website] challenging a Nevada law known as the County Population Rule, which required petitions for ballot initiatives to amend the Nevada Constitution [text] be signed by a number of registered voters from each county equal to ten percent of the voters who voted in the entire state at the last preceding general election. The lawsuit alleged that the law violates the Equal Protection Clause of the US Constitution by favoring residents of sparsely populated counties over residents of heavily populated counties. Using the strict scrutiny test developed by the Supreme Court for Equal Protection Clause analysis, Judge Pro wrote:

Because Defendants do not meet their burden of showing the County Population Rule is narrowly tailored to serve its interests and the Rule violates one person, one vote, no genuine issue of material fact exists that the County Population rule violates the Equal Protection Clause. The Court will therefor grant Plaintiffs' Motion for Summary Judgment ... Further, the Court declares the County Population Rule in Nevada Revised Statute [Section] 295.012 unconstitutional and enjoins Defendant [Nevada Secretary of State Ross] Miller from enforcing the County Population Rule.

[JURIST] Vietnamese journalists Nguyen Van Hai of Tuoi Tre news agency [media website, in Vietnamese] and Nguyen Viet Chien of Thanh Nien news agency [media website] have been charged with "abusing freedom and democracy" and will face up to seven years in prison if convicted at trial next month in the Hanoi People's Court, state media outlets reported Tuesday. The reporters were arrested [JURIST report] in May on suspicion of abuse of power and divulgation of false information [AFP report, in French] in connection with their uncovering of the so-called PMU 18 corruption scandal [JURIST report; Tuoi Tre news archive, in Vietnamese]. Newspaper Nguoi Lao Dong [media website, in Vietnamese] reported that two police officers who acted as sources for the story will also be tried for "deliberately revealing State secrets." AP has more.

Nguyen Van Hai and Nguyen Viet Chien reported on illegal gambling and corruption [JURIST news archive] within Project Management Unit (PMU) 18, a Vietnamese agency responsible for the construction of roads and bridges that receives aid from the World Bank and other countries. Their work triggered an investigation that led to the Hanoi People's Court's August 2007 convictions [JURIST report] of former Vietnamese government officials. Earlier this month, Human Rights Watch (HRW) called on the Vietnamese government [HRW report] to end efforts "to silence independent bloggers, journalists, and human rights defenders" and to enforce the right to exercise freedom of expression, assembly and association under the Vietnamese Constitution [text] and the International Covenant on Civil and Political Rights [text].

[JURIST] Absentee voting began Tuesday in Ohio after the Ohio Supreme Court [official website] and two federal district courts rejected Republican Party challenges to an Ohio secretary of state directive [PDF text]. By a 4-3 vote, the state Supreme Court on Monday upheld [case announcement, PDF] an interpretation of Ohio election statutes [text] by Secretary of State Jennifer Brunner [official website] allowing a one-week overlap before the end of voter registration and after the beginning of absentee balloting. The Supreme Court was ruling on a petition [case materials] filed by voters who alleged that Ohio law required a voter to be registered for 30 days before casting a ballot. Although the court has not yet released an opinion explaining its reasoning, it concluded that voters must be registered 30 days before the election, rather than 30 days before applying for or completing an absentee ballot. Brunner released a statement [press release] calling the decision "a victory for all Ohio voters." She continued:

It should send a message to the forces of confusion and chaos that our top goal must be protecting Ohioans’ voting rights. The Ohio Supreme Court today moved quickly to clarify that any unregistered Ohioan may both register and vote on the same day at boards or elections or their satellite locations in Ohio for a period of seven days.

[JURIST] The Canadian Bar Association (CBA) joined with Lawyers Without Borders [official websites] and six other international legal organizations on Tuesday to call for the return [CBA news release] of Guantanamo detainee Omar Khadr [DOD materials; JURIST news archive], in the latest attempt to return Khadr to his native Canada to face charges under Canadian law. In a statement [PDF text] made during a joint press conference Tuesday, a CBA spokeswoman said:

[We] issue this call to the Government of Canada to take appropriate steps with the United States to have Omar Khadr sent back to Canada. We at the CBA share the ASF's conviction that the case of Mr. Khadr, who has been detained by the American authorities since he was 15 years old, should be dealt with in Canada by competent, independent and impartial authorities. We also urge all the federal political parties to speak out in favour of Mr. Khadr's return to Canada, and to specify the steps they would take to achieve his repatriation as soon as possible.

[JURIST] Retired Quebec Justice John Gomery [CBC profile], the head of the now-concluded judicial inquiry [official website] into the federal sponsorship scandal [CBC backgrounder; JURIST news archive], told the Canadian Club of Montreal Monday that he played no role in Friday's move by the Canadian Conservative party government of Prime Minister Stephen Harper [official profile] to appeal two Federal Court rulings [JURIST report] on the scandal involving the formerly governing Liberal Party [party website] and former prime minister Jean Chrétien [official profile]. The Federal Court ruled in June that Gomery was biased against Chrétien [judgment, PDF] and his chief of staff Jean Pelletier [judgment, PDF]. The court also set aside a portion of the inquiry's findings, including a conclusion by Gomery that Chrétien and Pelletier had erred in their oversight of a sponsorship program, in which millions of dollars were given to advertising agencies friendly with the then-ruling Liberal Party, in return for little or no advertising work. CBC News has more. The Montreal Gazette has local coverage.

Gomery's first and second reports [text and materials], released in November 2005 and February 2006 [JURIST reports], outlined the results of his inquiry and included recommendations for controlling prime-ministerial power. The investigation began after Liberal Party Prime Minister Paul Martin, Chretien's successor, acknowledged allegations [JURIST report] of money laundering and kickbacks to Quebec advertising firms and took full responsibility for the misuse of public funds. After the reports has been issued, Gomery criticized [JURIST report] the ruling Conservative Party [party website] for ignoring his recommendations on limiting government corruption and abuse of power. In June 2007, a former Canadian advertising executive was sentenced to 42 months in prison [JURIST report] for bilking the government of almost $1.6 million as part of the scandal.