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Legal news from Thursday, May 13, 2010




Spain prosecutor requests arrest warrants for CIA rendition agents
Ximena Marinero on May 13, 2010 4:22 PM ET

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[JURIST] A lawyer from the Spanish National Court Office of the Prosecutor on Wednesday petitioned judge Ismael Moreno to issue arrest warrants for 13 CIA agents who allegedly kidnapped a German citizen of Lebanese descent in 2003 as part of the Bush administration's extraordinary rendition [JURIST news archive] program. Khaled el-Masri [JURIST news archive] claims that the CIA kidnapped him while he was traveling to Macedonia in 2003 and transported him to a secret detention facility in Afghanistan where he was held for four months. The Office of the Prosecutor alleges [WP report] that the court has jurisdiction to issue the warrants because the agents made a stop in Spanish territory using hidden identities without official Spanish government authorization to do so. Spanish newspaper El Pais published [text, in Spanish] the names of the alleged CIA agents in a recent story, also reporting that National Court Prosecutor Vicente Gonzalez Mota has petitioned the court to subpoena the London human rights organization Reprieve [advocacy website] to corroborate the agent names.

In 2008, el-Masri petitioned [ACLU materials; JURIST report] the Inter-American Commission on Human Rights (IACHR) [official website] to open an investigation of human rights violations by the US, alleging that he was tortured by the CIA. In 2007, the US Supreme Court rejected [JURIST report] without comment el-Masri's petition for certiorari, ostensibly supporting the Bush administration's contention that allowing el-Masri's federal lawsuit to proceed would require the revelation of state secrets. Also in 2007, the German Justice Ministry said that it would not press a formal request [JURIST report] to extradite the 13 CIA agents suspected of participating in el-Masri's alleged rendition after the Bush administration informed them it would not comply with a such a request despite a 2006 German investigation that concluded there was no evidence to disprove el-Masri's allegations.




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Zimbabwe government appeals cabinet nominee acquittal
Ximena Marinero on May 13, 2010 3:03 PM ET

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[JURIST] Zimbabwe Attorney General Johannes Tomana on Wednesday appealed the recent Supreme Court [court website] decision to acquit [JURIST report] Movement for Democratic Change (MDC) [party website] party treasurer and deputy agriculture minister-nominee Roy Bennett [BBC profile; JURIST news archive] of terrorism and insurgency charges. Tomana alleged [AllAfrica report] that Justice Chinembiri Bhunu erred in evaluating the authenticity of electronic evidence against Bennett as a matter of law. Bennett, a close ally of Prime Minister Morgan Tsvangirai [BBC profile; JURIST news archive] and opponent of President Robert Mugabe [BBC profile; JURIST news archive] had faced charges under Zimbabwe's Public Order and Security Act [materials] for unlawfully possessing weapons and provoking others "to commit terrorism, banditry and sabotage." Members of Mugabe's political party ZANU-PF are opposed [VOA report] to confirming Bennett's 2009 deputy agriculture minister nomination. A spokesperson for Tsvangirai's MDC party denounced the government's move to appeal as politically motivated.

In January of this year, Zimbabwe's high court rejected [JURIST report] evidence from a key witness in Bennett's trial, ruling that statements the state intended to use to impeach Peter Michael Hitschmann's testimony were not freely made by Hitschmann and were invalid as evidence. Bennett's trial began in November after delays in October to allow his counsel to develop a defense. Bennett was originally arrested on weapons charges in February 2009, and was released [JURIST reports] on bail the following month. He was then re-arrested on the same charges in October, only to be released on bail again. Treason charges against him were dropped in favor of the terrorism and other charges. Bennett was originally sought for questioning [JURIST report] in relation to similar allegations in 2006 but had obtained asylum [IOL report] in South Africa.




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Israel unlawfully destroyed civilian property during Gaza conflict: HRW
Jaclyn Belczyk on May 13, 2010 1:27 PM ET

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[JURIST] Israeli forces unlawfully destroyed civilian property [press release] during the 2008-2009 Operation Cast Lead [GlobalSecurity backgrounder; JURIST news archive] in the Gaza strip, Human Rights Watch (HRW) [advocacy website] said in a report [text] Thursday. According to the report, "'I Lost Everything': Israel's Unlawful Destruction of Property in the Gaza Conflict," there were at least 12 separate cases in which Israeli forces destroyed civilian property, including homes, factories, farms, and greenhouses, without any lawful military purpose. HRW urged the Israeli government to conduct a thorough investigation:
Conduct thorough and impartial investigations into alleged violations of international humanitarian law during the fighting of December 2008-January 2009 in Gaza. Make the investigation findings public and prosecute those responsible for war crimes in trials respecting international standards.
A spokesperson for the Israel Defense Forces (IDF) [official website] said that they are preparing a response to the report [Haaretz report].

Last month, HRW accused [JURIST report] both Israel and Hamas [JURIST news archives] of failing to conduct meaningful, credible investigations into accusations of war crimes during the Gaza conflict. In a 62-page report [text, PDF], HRW described the alleged law of war violations committed during the combat, along with the deficient responses from both sides. In February, HRW criticized [JURIST report] Israel for failing to demonstrate that it would conduct a thorough and impartial investigation of the alleged war crimes. Just prior to that, UN Secretary-General Ban Ki-moon [official website] said that it was unclear whether Israel and Palestine have fully met UN demands [JURIST reports] to set up a commission to investigate war crimes that may occurred during the conflict.




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HTC files patent infringement complaint against Apple
Patrice Collins on May 13, 2010 12:24 PM ET

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[JURIST] Mobile phone maker HTC [corporate website] filed a complaint [press release] Wednesday against Apple [corporate website] with the US International Trade Commission (ITC) [official website] to freeze the importation and sale of iPhones, iPads, and iPods. HTC, based in Taiwan, has accused [ET report] Apple of infringing five patents, though it has not released details of the patents in question. Under US law [19 USC s. 1337 text, PDF], a company can seek redress for unfair practices in import trade by issuing a complaint and asking the ITC to place exclusion orders on the offending imports.

In March, Apple filed a lawsuit [JURIST report] against HTC in US District Court for the District of Delaware [official website] alleging that several of HTC's products infringe 10 patents owned by Apple. Apple also filed a complaint [text, PDF] against HTC with the ITC claiming infringement of 10 other Apple patents, seeking to bar the importation of infringing devices. Apple has recently been involved in numerous legal actions over alleged patent infringement. In October, Finnish telecommunications company Nokia [corporate website] filed suit [JURIST report] against Apple alleging that Apple infringed 10 of its patents since the first iPhone was released in 2007. The patents cover wireless data transmission, speech coding, and security/encryption.




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ICTY prosecutors seek to amend Mladic indictment
Jay Carmella on May 13, 2010 11:30 AM ET

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[JURIST] The International Criminal Tribunal for the former Yugoslavia (ICTY) [official website; JURIST news archive] announced Thursday that the Office of the Prosecutor [official website] has filed a motion to amend [press release] the indictment against former Bosnian Serb Commander Ratko Mladic [case materials; JURIST news archive]. Prosecutors believe that the amended indictment will help speed up the court proceedings against Mladic once he is captured. The amended indictment includes [AP report] 11 counts of genocide, crimes against humanity, and violations of the laws and customs of war that took place between 1992-1995. The prosecutor's office said:
As set out in the Indictment, Ratko Mladic together with Radovan Karadzic was a key member of an overarching joint criminal enterprise the objective of which was the permanent removal of Bosnian Muslims and Croats from the territory in Bosnia and Hezegovina that Bosnian Serbs claimed for themselves. To achieve this aim, Ratko Mladic, acted in concert with others to commit crimes in different locations and at different times as alleged in the indictment.
Mladic has been a fugitive since 1995, despite frequent calls from the international community to bring him to justice.

The effort to capture and prosecute the participants involved in war crimes remains strong in Eastern Europe. Last week, EU police officers arrested [JURIST report] suspected war criminal Sabit Geci in Kosovo. Geci is accused of being a former member of the Kosovo Liberation Army (KLA) [GlobalSecurity backgrounder; JURIST news archive], which allegedly tortured prisoners at an Albanian prison during the 1998-1999 Kosovo war [BBC backgrounder; JURIST news archive]. In April, the ICTY resumed [JURIST report] the war crimes trial of former Bosnian Serb leader Radovan Karadzic [case materials; JURIST news archive]. In August 2008, Serbian President Boris Tadic [official website] said that his country would fully cooperate with the ICTY [JURIST report] to find Mladic and arrest him. Mladic faces charges of genocide and crimes against humanity for overseeing the Srebrenica [JURIST news archive] prison massacre and other killings of Bosnian Muslims and Croats.




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Kazakhstan approves constitutional amendment to increase presidential powers
Jay Carmella on May 13, 2010 10:19 AM ET

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[JURIST] The upper house of the Kazakhstan parliament [official website] approved a constitutional amendment on Thursday to expand the powers of President Nursultan Nazarbayev [official website]. The bill, which was introduced to the parliament just last week, was approved [JURIST report] by the lower house of parliament on Wednesday, and now needs only the president's signature to become law. Nazarbayev would be given a significant amount of power [RFE/RL report] under the amendment, including being named the "leader of the nation." In addition, Nazarbayev would receive immunity from investigation or prosecution for life. The bill would make it illegal to deface images of him, distort facts of his biography, or publicly insult him and would guarantee that all his property and holdings cannot be confiscated for any reason. Nazarbayev's supporters believe that the president has earned such protections due to his ability as a nation builder. Opponents have urged the president not to sign the bill [AP report]. Nazarbayev has been linked to criminal activities in the past that can no longer be investigated, including laundering money out of the country and the killing of political opponents.

Kazakhstan has come under increased scrutiny as the first former Soviet republic to chair the Organization for Security and Cooperation in Europe (OSCE) [official website], a role it assumed at the beginning of 2010. In March, Amnesty International (AI) [advocacy website] published a report criticizing the government [JURIST report] for failing to curb torture. In February, Kazakh non-governmental organizations asked [submission, PDF] the UN Human Rights Council [official website] to address instances of torture and the use of unlawful evidence obtained through torture during trial. In August, Reporters Without Borders [advocacy website] condemned a Kazakh high court decision upholding the conviction [JURIST report] of a journalist charged with publishing state secrets. In December 2009, Human Rights Watch [advocacy website] said that the former Soviet nation is falling short [JURIST report] on reforms promised in advance of their assumption of the OSCE chairmanship.




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Obama administration defends against health care lawsuit
Jaclyn Belczyk on May 13, 2010 9:33 AM ET

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[JURIST] The US Department of Justice (DOJ) [official website] on Tuesday filed its first response [brief text] to one of several lawsuits challenging the controversial new health care reform law [text; JURIST news archive]. In a brief filed in the US District Court for the Eastern District of Michigan [official website], the DOJ defended the law, asserting that Congress acted within its powers to regulate interstate commerce. The suit [complaint, PDF], filed in March by conservative public interest group the Thomas More Law Center [advocacy website] on the same day President Barack Obama signed the bill into law [JURIST report], argues that the mandate that all individuals carry health insurance is unconstitutional. The DOJ responded:
Congress determined that the health care system in the United States is in crisis, spawning public expense and private tragedy. After decades of failed attempts, Congress enacted comprehensive health care reform to deal with this overwhelming national problem. The minimum coverage provision is vital to that comprehensive scheme. Enjoining it would thwart this reform and reignite the crisis that the elected branches of government acted to forestall.
The Thomas More Law Center is seeking an injunction against the individual mandate, which takes effect in 2014.

The Obama administration is also facing health care lawsuits in Virginia and Florida, filed by numerous state attorneys general. Last month, Georgia joined 18 other states [JURIST report] in a lawsuit [complaint, PDF] filed [JURIST report] in the US District Court for the Northern District of Florida [official website]. The 18 other states involved in the suit are Florida, Texas, South Carolina, Nebraska, Pennsylvania, Louisiana, Washington, Colorado, Michigan, Utah, Alabama, South Dakota, Idaho, Indiana, North Dakota, Mississippi, Nevada, and Arizona. Seven more states are set to join the lawsuit [WP report] Friday. Meanwhile, Virginia has filed a separate lawsuit after that state's legislature passed a bill barring mandatory individual health coverage [JURIST report].




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