[JURIST] In a televised address to the nation [transcript; recorded video] Wednesday evening, Canadian Prime Minister Stephen Harper [official website] promised to use "every legal means" at his disposal "to protect our democracy, to protect our economy and to protect Canada" on the eve of a critical meeting scheduled for 9:30 AM ET Thursday morning with Governor General Michaelle Jean [official profile]. Although he made no specific mention of it in his remarks, Harper is widely expected to ask Jean to prorogue the Canadian parliament until January to avoid losing a vote of confidence in the House of Commons to a putative coalition [accord text, PDF] of two federal opposition parties supported by a third, a move which earlier this week threw the country into constitutional chaos [JURIST report] at the prospect of a change in government without an intervening election. Prorogation - granting of which is within the traditional powers of the governor general [official backgrounder] as resident representative of the Queen, Canada's formal head of state - would mean the end of the current parliamentary session and the death of all government bills in progress. Speaking directly to Canadians, and noting that his minority government had just been returned to power in a federal election on October 14 [election results], Harper castigated the coalition to be led by Liberal Party chief Stephane Dion [campaign website] in association with the leftist New Democratic Party supported by the Bloc Quebecois [party websites]:

The Opposition is attempting to impose this deal without your say, without your consent, and without your vote. This is no time for backroom deals with the separatists; it is the time for Canada’s government to focus on the economy...

The Harper Conservatives have lost the confidence of the majority of Members of the House of Commons. In our democracy, in our parliamentary system, in our Constitution, this means that they have lost the right to govern.

Mr. Harper’s solution is to extend that crisis by avoiding a simple vote. By suspending Parliament and continuing the confusion. We offer a better way. We say settle it now and let’s get to work on the people’s business. A vote is scheduled for next Monday. Let it proceed...

Earlier today I wrote Her Excellency the Governor General. I respectfully asked her to refuse any request by the Prime Minister to suspend Parliament until he has demonstrated to her that he still commands the confidence of the House.

[JURIST] Chief Prosecutor of the International Criminal Court (ICC) [official website] Luis Moreno-Ocampo [official profile] Wednesday formally called upon states [press release] to prepare for the court's ruling on the arrest of Sudanese President Omar Hassan Al Bashir [BBC profile]. Briefing the UN Security Council [official website] on the situation in Darfur, Ocampo urged members to ensure there is no political and financial support for those subject to arrest for crimes or for those protecting them. He said:

An indicted person travelling on the territory of an UN member State should be arrested and surrendered to the Court. There is no immunity on account of rank or official position for those identified by the judges of the International Criminal Court as responsible for war crimes, crimes against humanity or genocide.

[JURIST] The US Securities and Exchange Commission (SEC) [official website] approved rule amendments [SEC press release] Wednesday that provide greater oversight and regulation of credit rating agencies. The rule amendments, which were passed to strengthen the Credit Rating Agency Reform Act of 2006 [text, PDF], will effect ratings agencies including Standard and Poor's and Moody's [corporate websites], who provide graded analysis of the credit-worthiness of corporations and other entities. The rule amendments [SEC fact sheet] include additional disclosure requirements which must be provided by ratings agencies concerning their ratings analyses, more stringent record-keeping requirements, and heightened conflict of interest rules. In comments made after the SEC approved the new rules, SEC Chairman Christopher Cox [official profile] said [speech text]:

Earlier this year the SEC publicly released our findings from an extensive 10-month examination of the three major credit rating agencies that uncovered significant weaknesses in their ratings practices for mortgage-backed securities and that called into question the impartiality of their ratings. The SEC last summer proposed comprehensive reforms to regulate the conflicts of interests, disclosures, internal policies, and business practices of credit rating agencies. The proposed rules addressed conflicts of interest and required new disclosures designed to increase the transparency and accountability of credit rating agencies.

Today, after taking into account the many comments the agency has received, and revising the proposals to address practical concerns that were brought to our attention through this public notice and comment procedure, we are prepared to issue final rules. These new rules will promote the goals of the Credit Rating Agency Reform Act of 2006 of improving ratings quality for the protection of investors and in the public interest by fostering accountability, transparency, and competition in the credit rating agency industry.

[JURIST] US Department of Justice (DOJ) [official website] lawyers on Tuesday filed a challenge [motion, PDF] to a federal judge's decision to stay the execution of convicted murder suspect US Army private Ronald Gray. Judge Richard Rogers for the US District Court for the District of Kansas last week ordered the stay [order, PDF] of the execution, which had been scheduled for December 10, in order to give Gray the opportunity to challenge his sentence. Lawyers for Gray sought the stay, arguing [motion text] that they could not make appeals based on changes in the Uniform Code of Military Justice (UCMJ) [text] since Gray's conviction until after President George W. Bush approved his execution [JURIST report] in July. DOJ lawyers objected to the stay, arguing that his defense has had ample opportunity to file appeals on his behalf.

Gray's execution was the first military execution to be approved by a president since 1961 [NYT report]. Gray was first tried by a civilian court for his connection to four murders and eight rapes in North Carolina in the mid-1980s. He pleaded guilty to two counts of murder and five counts of rape, and the court sentenced him to life in prison. Gray was then sentenced to death for murder and rape by a court-martial panel in 1988, a military sentence that requires presidential approval under the UCMJ. Gray later appealed his court-martial sentence, but the Court of Appeals for the Armed Services rejected Gray's appeal [opinion text] in 1999, and the US Supreme Court denied certiorari [government Supreme Court brief, PDF] in 2001.

[JURIST] The International Criminal Court (ICC) [official website; JURIST news archive] on Tuesday temporarily postponed [decision, PDF] proceedings against former Democratic Republic of Congo (DRC) [JURIST news archive] rebel leader Jean-Pierre Bemba [ICC profile; JURIST news archive] because another member of the pre-trial chamber was granted a leave of absence due to "grave family circumstances." The absence of a member of the chamber left an insufficient number of judges [ICC press release] on the panel to successfully confirm the charges against Bemba. Proceedings in the case will resume after a meeting of the parties ordered for January 12, 2009.

Bemba, who was originally arrested by Belgian authorities [JURIST report] in May, was arraigned [JURIST report] at the ICC on war crimes and crimes against humanity charges in July. Bemba has been charged [arrest warrant, PDF, in French] with war crimes and crimes against humanity allegedly committed in the Central African Republic (CAR) [BBC backgrounder] between October 2002 and March 2003. ICC prosecutors say he is responsible for rape, torture, outrages upon personal dignity, and pillaging. Bemba's arrest warrant is the first issued by the ICC in its investigation of large-scale sexual offenses [ICC press release] in the CAR. Bemba, now a member of the Congolese Senate, was elected to office after losing a run-off presidential election [JURIST report] to Joseph Kabila [BBC profile], who in December 2006 became the first freely-elected president of the DRC since 1960. After the election, Bemba's private militia force led a violent campaign against government troops until the DRC Supreme Court rejected his election challenge [JURIST report]. In the process, Bemba's supporters set fire to the Supreme Court building [JURIST report]. Following the clashes, the chief prosecutor of the DRC issued a warrant for Bemba's arrest [JURIST report], and he fled to Europe. A court in CAR referred the original war crimes charges [JURIST report] to the ICC in April 2006.

[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; briefs] Wednesday in two cases. In Philip Morris USA v. Williams [oral arguments transcript, PDF], the Court considered for a third time a $79.5 million punitive damages verdict against Philip Morris USA [corporate website]. The Court previously ruled [JURIST report] that the punitive damages award based "in part on [a jury's] desire to punish the defendant for harming persons who are not before the court" amounts to an unconstitutional taking of property without due process. On remand, the Supreme Court of Oregon [official website] again upheld [opinion text] the verdict, finding that it did not need to reach the federal constitutional issue if there was "an independent and adequate" basis in state law for upholding the verdict. Counsel for petitioner Philip Morris argued that "the Oregon court failed to follow this Court's directions on remand and . . . the ground it gave is not adequate to show a forfeiture of due process rights." Counsel for respondent argued, "This Court's constitutional mandate in this case is conditioned in several significant respects, and it invites the discretion and judgment of a State court that's applying it."

In Haywood v. Drown [oral arguments transcript, PDF] the Court heard arguments on whether a state’s withdrawal of jurisdiction over certain damages claims against state corrections employees may be constitutionally applied to exclude federal claims under USC Section 1983 [text], especially when the state legislature withdrew jurisdiction because it concluded that permitting such lawsuits is bad policy. Petitioner Haywood brought two section 1983 suits against corrections employees. The trial court dismissed both cases, finding his lawsuits were barred by New York Correction Law § 24 [text], which prevents state trial courts from hearing claims for money damages against prison employees whether based on federal or state law. Both the intermediate appellate court and the Court of Appeals of New York [official website] affirmed [opinion, PDF]. Counsel for petitioner argued that the

statute relegates Mr. Haywood and anyone else seeking money damages under section 1983 to either bring their case in Federal court or to accept what the New York legislature has deemed a State law alternative. That State law alternative does not allow Mr. Haywood to sue the prison guards who violated his civil rights; instead he can only sue the State.

[JURIST] The European Court of Human Rights (ECHR) [official website] ruled [judgment text] unanimously Tuesday that Finland [official website] violated Article 8 of the European Convention on Human Rights [text] - the "right to respect for private and family life" - in a case involving a minor targeted by pedophiles. In K.U. v. Finland (application no. 2872/02), the court found that Finnish authorities failed to provide a legal framework to protect the applicant's rights when his privacy was invaded by a personal ad with sexual connotations that was posted on the Internet without his knowledge. The applicant was 12 years old at the time of the incident in 1999. The court said [press release] that at the time the incident occurred, the Finnish legislature should have already identified the need and provided a legal "framework for reconciling the confidentiality of Internet services with the prevention of disorder or crime" so that that there would have been a legal basis for the Helsinki District Court [official website, in Finnish] to oblige the Internet service provider to identify the culprit. Within the next three months from the date of the judgment, Finnish authorities may request that the case be referred to the Grand Chamber of the ECHR, but such requests are only granted in exceptional cases that raise a serious question affecting the interpretation or application of the convention or its protocols.

The Finnish legislature subsequently passed the Exercise of Freedom of Expression in Mass Media Act [unofficial translation, PDF] that now provides a remedy to victims of Internet crime, but it was not in effect at the time of the incident. After the district court declined to oblige the Internet service provider to identify the user, the case was affirmed by the Court of Appeals, and the Supreme Court of Finland declined to hear the case. The case was filed with the ECHR in January 2002, but was not declared admissible until June 2006.

[JURIST] The Roman Catholic Diocese of Springfield, Massachusetts [diocesan website] announced [press release] Tuesday that it has settled 59 sexual abuse claims against the church through voluntary arbitration. The total amount for the settlements was $4.5 million with individual awards ranging from $5,000 to $200,000 for incidents of abuse from 1948 to 1986. Springfield bishop Timothy McDonnell said of the agreements:

It's a terrible thing for anyone to suffer sexual abuse, but even more so for a child. The after effects impact the person's whole life. My prayer is that a small step toward healing takes place through these settlements. I apologize to all who have been hurt.

[JURIST] The Convention on Cluster Munitions (CCM) [text; official website] banning the use of most such weapons was opened for signature Wednesday at a conference [official website] in Oslo, Norway. More than 100 countries adopted the convention [JURIST report] in May at a meeting in Dublin, Ireland. Several major users of cluster munitions, including the US, Russia, and China, have not adopted the convention and will not be signing. A spokesperson for the US State Department said [press release] Tuesday, "...a general ban on cluster munitions will put the lives of our military men and women, and those of our coalition partners, at risk." Supporters of the ban have praised the convention as a major development that will stigmatize the use of the weapons. Jakob Kellenberger, president of the International Committee of the Red Cross (ICRC) [advocacy website] said [press release] that "we have forever changed how cluster munitions will be seen by States, by the public and by history."

Cluster bombs break apart, releasing large numbers of smaller, self-contained explosives which spread out before detonating upon impact. Their design aims to stop large-scale troop movements by maximizing bodily injury over a wide area. Bombs that fail to detonate can present a serious hazard for civilian populations. Strong supporters of the ban include the UK, France, Germany, Italy, Spain, Canada, Japan, Mexico, and Australia. In May, Pope Benedict XVI urged [AFP report] all governments to adopt the ban. Although the US did not adopt the ban, claiming it would impede humanitarian efforts [JURIST report] by discouraging cooperation with non-signatories, it did adopt a formal policy [text, PDF] on cluster munitions in June "intended to minimize the potential unintended harm to civilians and civilian infrastructure."

~12/4/08: 93 nations have signed the convention.

[JURIST] Russian President Dmitry Medvedev [official profile; JURIST news archive] on Tuesday proposed [transcript, in Russian] that Russian courts become more transparent in order to restore faith in the justice system and prevent people from turning to the European Court of Human Rights (ECHR) [official website]. Speaking at the seventh All-Russian Congress of Judges, Medvedev said [Moscow Times report] that the ECHR cannot and should not replace Russian courts. Russia is the source of more applications to the ECHR than any other country. Medvedev proposed measures to improve the quality of judges and provide broader access to court documents. He encouraged the congress to discuss his concerns and make concrete proposals [ITAR-TASS report]. The congress meets through Thursday.

In June, Medvedev said he was committed to improving Russia's human rights record and enforcing the rule of law, reiterating pledges he made at his May inauguration [JURIST reports]. Medvedev, himself a lawyer by training, promised top legal officials he would tackle corruption and intimidation in the Russian judicial system [JURIST report], calling for reforms to better train and support judges. Experts have noted that corruption is rife in Russian courts, and that judges' pay and status are too low to resist pressure to accept bribes. Earlier this year, Exxon Mobil CEO Rex Tillerson [corporate profile] said that there was little international confidence in Russia's judicial system, and that the country needs to make significant improvements [JURIST report] to attract more foreign investment.

[JURIST] A federal judge on Tuesday ruled [opinion, PDF] that her 2006 decision [opinion, PDF; JURIST report] invalidating a 2005 Bush administration rule [text] that would allow road construction and mining in national forests applies only to 10 western states. The original Roadless Area Conservation Rule [Forest Service backgrounder], implemented by former US President Bill Clinton in 2001, was replaced [JURIST report] by the Bush administration with a rule allowing governors to request that regulations on the management of roadless areas be developed to meet the needs of individual states. Under the 2006 ruling by Judge Elizabeth Laporte of the US District Court for the Northern District of California [official website], the reinstated Clinton-era rule would have prohibited mining, logging, and road construction in the forests of 38 states and Puerto Rico, totaling more than 58 million acres of land. In August another federal judge ruled [opinion, PDF] that the Clinton-era rule was invalid. The Bush administration asked that the two conflicting decisions be reconciled, so Laporte amended her 2006 decision to apply to only 10 western states. The Wilderness Society [advocacy website], a plaintiff in the original case, has called on [press release] the Bush administration "to refrain from using a decision by a federal judge [Tuesday] as an excuse to knock down protection for an estimated 13.6 million acres of roadless national forests in 29 states." Cases are currently pending in federal courts in San Francisco and Denver, and the incoming Obama administration could also make changes to the rule.

In her 2006 decision, Laporte found in favor of 20 environmental groups and California, Washington, New Mexico, and Oregon, which sued [JURIST report] the US Forest Service [official website]. Attorneys for Earthjustice [advocacy group] representing the environmental groups in the case praised the decision [press release], but members of the timber industry and other opponents criticized the ruling, saying states should be able to manage their own forests by using citizen opinion polls.

[JURIST] The US Court of Appeals for the Second Circuit [official website] ruled [opinion, PDF] Tuesday that a suspected Osama bin Laden associate, imprisoned for 32 years after stabbing a prison guard while in custody, may be resentenced according to heightened standards for acts of terrorism. Mamdouh Mahmud Salim, a Sudanese national, was in custody in 2000 awaiting charges related to the 1998 bombing of two US embassies [State Department backgrounder] in Tanzania and Kenya when he attacked a prison guard and rendered him partially blind and paralyzed. Following the attack, Salim pleaded guilty to attempted murder and conspiracy to murder a federal official [18 U.S.C. §§ 1114 and 1117 text] and was sentenced to 32 years in prison. The government argued that the district court should have imposed a longer sentence according to the enhanced sentencing guidelines for acts of terrorism [US Sentencing Guidelines § 3A1.4, PDF]. The Second Circuit agreed, rejecting the district court's contention that the crime could not be considered terrorism because it did not transcend national boundaries. The appeals court held that the terrorism enhancement does not require transnational conduct, stating that "Congress could have defined 'Federal crime of terrorism' to include a requirement that the offense conduct transcend national boundaries, but it did not." Salim will now be resentenced according to the judgment, though defense lawyers indicated that they may appeal the decision.

Salim still faces trial for his alleged role in planning the 1998 embassy bombings. Last week, the Second Circuit upheld [JURIST report] the convictions of three men related to the attacks. In March, the US also charged [JURIST report; charge sheet, PDF] Guantanamo Bay detainee Ahmed Khalfan Ghailani [BBC profile] with several terrorism-related counts for his alleged involvement in the bombings. Kenya dropped charges [JURIST report] in 2005 against three other men connected with the attack in Nairobi that killed 224 people.