[JURIST] Palestinian leaders urged the International Criminal Court (ICC) [official website] and its Chief Prosecutor, Luis Moreno-Ocampo [official profile] on Friday to initiate an investigation into alleged Israeli war crimes during the recent conflict in Gaza [JURIST news archive]. Palestinian National Authority (PNA) [IMEU backgrounder] Justice Minister Ali Khashan called on the ICC [AP report] to conduct the investigation, expressing concern that alleged war crimes not go unpunished. Last week, Moreno-Ocampo announced that PNA president Mahmoud Abbas [BBC profile] had petitioned the court to exercise jurisdiction [JURIST report] over possible war crimes committed in the Gaza Strip, but indicated the tribunal would first have to consider whether the PNA qualifies for statehood under international law before addressing the allegations. If the ICC finds that it has jurisdiction, the prosecutor must make a preliminary finding that there is a reasonable basis to believe [ICC backgrounder] that a crime within the ICC's jurisdiction has been committed.

Under the ICC's Rome Statute [text], jurisdiction in a matter can only be transferred to the court when it involves a recognized, signatory state, or by special approval of UN Security Council [official website]. Israel, the country generally considered to possess the Gaza Strip, does not recognize the court. Moreno-Ocampo previously said that the ICC lacked jurisdiction over the alleged crimes, but then indicated last Monday that the court was nonetheless making a "preliminary analysis" [JURIST report] of the situation. Israel has already begun to consider defenses against possible war crimes charges [JURIST report], partly based on accusations [JURIST report] by groups such as Amnesty International (AI) [advocacy website] that it used white phosphorus [GlobalSecurity backgrounder] in a civilian area.

[JURIST] The US Court of Appeals for the Ninth Circuit [official website] granted an en banc rehearing [order, PDF] to Wal-Mart, Inc. [corporate website] Friday in a long-running gender discrimination suit against the retailer. According to the order, a majority of the Ninth Circuit judges, excluding the three judges who heard an earlier appeal [JURIST report] in which class certification was upheld, voted in favor of an en banc hearing. The case, Dukes v. Wal-Mart, Inc., is a class-action lawsuit filed in 2001 by female employees of Wal-Mart [class website] who have alleged that the retailer violated their civil rights by discriminating against them because of their gender. The class has grown to include nearly 2 million women who have worked for Wal-Mart since 1998. In the 2004 class certification ruling, a federal district court judge found evidence [San Francisco Chronicle report] that Wal-Mart paid women less than men in every region and in most job categories, and took longer to promote women to management.

A three-judge panel of the Ninth Circuit originally ruled against Wal-Mart's appeal of the class certification in February 2007, then issued a new opinion [text, PDF] in conjunction with its decision in December 2007. Wal-Mart appealed [JURIST report] to the Ninth Circuit in 2005, arguing that the six lead plaintiffs were not typical or common of the class. Wal-Mart also objected to the size of the class certified, which they say is the largest in US history and would violate its due process rights. Wal-Mart argued that its stores operate independently and should be sued individually; plaintiffs' lawyers countered that individual lawsuits would be impractical. The district court also rejected Wal-Mart's claim that the class size was "impractical on its face" and approved a statistical formula for paying damages if discrimination is proven.

[JURIST] An Obama administration official said Friday that a review of detainees, the first step in closing the prison at Guantanamo Bay [JURIST news archive], has begun [Los Angeles Times report]. US President Barack Obama [official website] issued the executive order [text] last month that initiated the review process. The order called for the review to be conducted by a "Special Task Force on Detainee Disposition," which includes US Attorney General Eric Holder [official profile] and Secretary of Defense Robert Gates [official profile] as co-chairs. The review is intended to determine the options available in regards to the prosecution, transfer, or other dispositions of detainees, along with providing an assessment of detention policies.

On the same day as the executive order for review, Obama issued the executive order [text; JURIST report] directing that the military prison be closed "as soon as practicable, and no later than 1 year from the date of this order." The order also instructed Gates immediately to halt military commission [DOD materials; JURIST news archive] proceedings pending a comprehensive review of all Guantanamo detentions under the supervision of the Attorney General. The order did not specify where detainees would go upon release, but it did call for diplomatic efforts with foreign states in order to facilitate the closure of the facility.

[JURIST] A judge in the US District Court for the Eastern District of California [official website] ruled [opinion, PDF] this week that the Sex Offender Registration and Notification Act of 2006 (SORNA) [DOJ backgrounder, PDF], which makes it a federal crime for a sex offender [JURIST news archive] to attempt to move to another state while failing to register in a nationwide database, is unconstitutional. In the cases of Mark Anthony Valverde, and Nedde Max Murphy Jr., Judge Lawrence Karlton held [Sacramento Bee report] that the statute violates the Commerce Clause [US Constitution Article I, Section 8, Clause 3 text] of the US Constitution. Valverde had pleaded guilty to sexual assault charges in 2002 in California, and after being paroled in 2008, he was arrested when he fled to Montana before registering as a sex offender. In his order dismissing Valverde's indictment, Karlton relied in part on the US Supreme Court [official website; JURIST news archive] cases of United States v. Lopez and United States v. Morrison, saying:

[Section] 2250 does possess a purportedly jurisdictional element, as it penalizes a person who is required to register under SORNA and knowingly fails to do so or to update his or her registration and who travels in interstate commerce. In this way, unlike the statutes considered in Lopez and Morrison, the section limits the class of those who can be penalized to only those who have traveled in interstate commerce. The problem, however, is that this jurisdictional hook still creates a class that is too broad for Commerce Clause purposes.

Under the statute, a person may be prosecuted for failing to register in his home state, then crossing state lines and registering in the next state. The harm, therefore, may be entirely intrastate. Were this a sufficient jurisdictional element, there would be no limit to Congress’s ability to penalize any crime whatsoever, so long as the defendant at some point in the course of his life traveled across state lines. This appears to be a plain usurpation of the state’s police power; as the Court expressed in Morrison, there is “no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims.” As such, the jurisdictional language in [Section] 2250 cannot alone render the statute valid under the Commerce Clause.