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Legal news from Tuesday, August 10, 2010




Taliban should face war crimes charges over civilian casualties: AI
Dwyer Arce on August 10, 2010 2:17 PM ET

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[JURIST] Amnesty International (AI) [advocacy website] on Tuesday called for the Taliban [CFR backgrounder] and other insurgent groups in Afghanistan to be tried for war crimes [press release] for targeting civilians. The statement was released following the 2010 Mid-Year Report on Protection of Civilians in Armed Conflict [text; UN News Centre report] from the UN Assistance Mission in Afghanistan (UNAMA) [official website]. The report found that in the first six months of 2010 there had been 3,268 civilian deaths and injuries, 76 percent of which were attributed to the Taliban and allied groups fighting NATO forces and the government of Afghan President Hamid Karzai [official profile]. This constitutes a significant shift from 2009, where NATO accounted for just under half of all civilian casualties in the country, marking a 95 percent increase in civilian casualties attributed to the Taliban and related groups. The report also found the number of child and women casualties to have risen 55 and 6 percent, respectively, over the same period in 2009. This data prompted AI to call for the investigation and prosecution of the Taliban and other responsible groups for war crimes:
The Taleban and other insurgents are becoming far bolder in their systematic killing of civilians. Targeting of civilians is a war crime, plain and simple. The Afghan people are crying out for justice, and have a right to accountability and compensation. There is no practical justice system in Afghanistan now that can address the lack of accountability. So the Afghan government should ask the International Criminal Court to investigate war crimes and crimes against humanity that may have been committed by all parties to the conflict.
Afghanistan is a party to the Rome Statute [text, PDF], giving the International Criminal Court (ICC) [official website] jurisdiction over war crimes committed on Afghan territory.

Both sides of the conflict have faced criticism over civilian casualties from human rights groups and activists in recent years. In March, Human Rights Watch (HRW) [advocacy website] called on the Afghan government to retract a law granting amnesty [JURIST report] for war crimes and human rights abuses committed by the Taliban and others prior to December 2001. The law contradicted a plan adopted by the Afghan government [JURIST report] in 2005 to investigate war crimes and human rights violations committed while the Taliban controlled the government. Last month, Wikileaks [website] founder Julian Assange [Telegraph profile] said that the Afghan War Diaries [materials], a compilation of 91,000 documents leaked to the organization on the US war effort in Afghanistan, may provide evidence of war crimes [JURIST report] committed by US forces. In May 2009, HRW called on the US government to make "fundamental changes to reduce civilian casualties" [JURIST report] in Afghanistan after attacks last week reportedly left more than 140 civilians dead.




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South Korea police raid Google office over data collection
Daniel Richey on August 10, 2010 1:22 PM ET

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[JURIST] The South Korean National Police Agency (SKNPA) [official website, in Korean] raided the Google [corporate website] South Korean headquarters in Seoul on Tuesday morning in connection with accusations that the company has been illegally acquiring user data. Representatives from the SKNPA's Cyber Terror Response Center [official website, in Korean] said that officials suspect Google of collecting personal data from wireless networks using its fleet of Street View vehicles, camera-equipped cars the search engine operator uses to map streets for its Google Maps [website] service. Korean authorities said that they learned months ago that Google has been collecting data from wireless networks and will continue the investigation until they can determine if any of the data collected violates the country's privacy laws. Google has said it will cooperate with the investigation [Bloomberg report].

Multiple investigations are already pending around the world in connection with accusations that Google unlawfully collected private data. Last month, Australian authorities completed an investigation [JURIST report] into the search giant's collection and storage of private data [JURIST news archive] over unsecured wireless networks, determining that the company violated the Australia Privacy Act. In June, the UK Metropolitan Police [official website] initiated an investigation [JURIST report] in response to a complaint filed [JURIST reports] by Privacy International (PI) [advocacy website], which claims that the information gathered in an independent audit [text, PDF] published by Google earlier that month proves that the company's interception of unencrypted data was not inadvertent [JURIST report] and should lead to prosecution. Earlier that week, Connecticut Attorney General Richard Blumenthal [official profile] announced that he will lead a multistate investigation [JURIST report] against Google and requested detailed information from the company on its data harvesting practices. Additionally, Canada launched an investigation [JURIST report] in June to determine whether Google has violated the country's Personal Information Protection and Electronic Documents Act [text, PDF], which applies to private organizations that collect, use or disclose personal information in the course of commercial activities. Belgium, the Czech Republic, France, Germany, Italy, Spain and Switzerland have also asked Google to retain data collected in those respective nations.




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Scotland lawmakers call for release of Lockerbie bomber medical records
Dwyer Arce on August 10, 2010 1:09 PM ET

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[JURIST] The opposition Scottish Labour Party [party website] called Tuesday for the publication of all medical evidence related to the release of convicted Pan Am Flight 103 [BBC backgrounder] bomber Abdelbaset Ali Mohmed Al Megrahi [BBC profile]. The demand comes one year after al Megrahi was released [JURIST report] from prison on compassionate grounds because doctors predicted he only had three months to live. Al Megrahi was then returned to his native Libya, where he is sill living, and experts have suggested that he could continue living for a year or more [Mail Online report]. Despite the publication of a report leading to the decision, the Labour party said that all medical opinions leading to the decision and the names of the doctors who authored them should also be released [BBC report]. Responding to criticism of his decision to release al Megrahi, Scottish Justice Secretary Kenny MacAskill [official website] claimed he acted in good faith when authorizing the release, denying that there was an arrangement [Telegraph report] for al Megrahi to drop his appeal in return for his release. Last month, US lawmakers called for an investigation [JURIST report] into the role that oil company British Petroleum (BP) [corporate website] may have played in al Megrahi's release. The lawmakers are asking that the Senate Judiciary Committee investigate whether BP played a role in lobbying for the release of al Megrahi in exchange for a 2007 contract with Libya allowing the company to drill in the country's coastal waters.

Al Megrahi's release was controversial, with both US officials and the Scottish Parliament [JURIST reports] condemning it. Al Megrahi was convicted in 2001 of the Pan Am bombing and sentenced to 27 years in prison, which he subsequently appealed. In November 2008, the Scottish High Court of Judiciary [official website] denied al Megrahi's request to be released [JURIST report] on bail during the appeals process. In March 2008, lawyers for al Megrahi were denied access to a "missing document," that they had sought in appealing his conviction [JURIST reports]. The Scottish Criminal Cases Review Commission (SCCRC) [official website] granted an appeal [JURIST report] in the case in June 2007 and referred it the High Court after the commission identified six grounds for a possible "miscarriage of justice" In his trial and conviction. In 2003, Libya made its final compensation payment [JURIST report] to a US fund for victims' families in November 2008 after agreeing to accept responsibility for the 1988 airline bombing over Lockerbie, Scotland, that killed all 259 on board [memorial website] including 180 Americans.




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Jury selection begins in Khadr military trial
Dwyer Arce on August 10, 2010 12:15 PM ET

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[JURIST] The military trial of Canadian Guantanamo Bay [JURIST news archives] detainee Omar Khadr [DOD materials; JURIST news archive] began Tuesday with jury selection, despite international criticism of the proceedings. Khadr pleaded not guilty to charges of murder and terrorism [JURIST reports] Monday for allegedly throwing a grenade that killed one US soldier and injured another when he was 15. Potential jury members, all US military officers, were questioned by prosecutors and defense attorneys during the proceedings. The final jury will consist of at least five members [AP report] during the trial, which is expected to last for several weeks and could result in a life sentence for Khadr. UN Special Representative for Children and Armed Conflict Radhika Coomaraswamy [official profile] criticized [press release] Tuesday's proceedings, arguing the trial would set a dangerous precedent for child soldiers [CFR backgrounder] worldwide:
The statute of the International Criminal Court (ICC) makes it clear that no one under 18 will be tried for war crimes, and prosecutors in other international tribunals have used their discretion not to prosecute children. Since World War II, no child has been prosecuted for a war crime. Child soldiers must be treated primarily as victims and alternative procedures should be in place aimed at rehabilitation or restorative justice. Even if Omar Khadr were to be tried in a national jurisdiction, juvenile justice standards are clear; children should not be tried before military tribunals. The Omar Khadr case will set a precedent that may endanger the status of child soldiers all over the world. I urge both [the US and Canadian] governments to come to a mutually acceptable solution on the future of Omar Khadr that would prevent him from being convicted of a war crime that he allegedly committed when he was child.
The trial has also been criticized by Canadian Senator Romeo Dallaire (L-QC) [official website], who has questioned the legitimacy of the proceedings.

US military judge Army Colonel Patrick Parrish ruled Monday that Khadr's confessions are admissible evidence in the trial. Khadr's US military lawyer, Lt.-Colonel Jon Jackson, claimed [motion, PDF] that his statements were illegally obtained through threats of rape and death by interrogators. Prosecutors argued that they did not rely on Khadr's interrogation confessions and that, according to intelligence agents, Khadr spoke freely. Parrish also ruled that video that US forces found weeks after the battle of Khadr helping al Qaeda operatives make and plant bombs in Afghanistan would be admissible. On Friday, the US Supreme Court [official website] refused to block the trial. Last month, the US District Court for the District of Columbia [official website] refused to lift the stay [JURIST report] on his habeas corpus petition pending the conclusion of the trial. Khadr's defense lawyers have repeatedly sought his repatriation [JURIST report] to Canada on the basis that the Canadian government's refusal to request repatriation violates the Canadian Charter of Rights and Freedoms [text].




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Japan PM apologizes for Korea colonization
Dwyer Arce on August 10, 2010 10:41 AM ET

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[JURIST] Japanese Prime Minister Naoto Kan [official website] on Monday apologized to South Korea [statement] for Japan's 20th-century colonization of the Korean peninsula. The statement was timed to coincide with the anniversaries of the 1910 annexation of the peninsula and the 1945 South Korean independence, which both occurred during August. In his statement, Kan emphasized the strength of the two countries' bilateral relations [CFR backgrounder] and the similarity of their societies, stating:
To the tremendous damage and sufferings that this colonial rule caused, I express here once again my feelings of deep remorse and my heartfelt apology. ... Japan and [South Korea] have become the most important and closest neighboring nations ... in [the] twenty-first century, sharing such values as democracy, freedom, and [a] market economy. Our relationship is not confined to our bilateral relations, but rather it is a partnership where we cooperate and exercise leadership for the peace and prosperity of the region and the world by encompassing a broad spectrum of agenda: the peace and stability of this region envisioning, among others, the future establishment of an East Asia community, the growth and development of the world's economy, as well as issues of global scale such as nuclear disarmament, climate change, poverty and peace-building.
Kan also apologized during a phone conversation [CSM report] with South Korean President Lee Myung-bak [official website]. The statement is seen as an effort by the Japanese government to forge closer ties with South Korea. The apology was criticized Tuesday by South Korea's ruling Grand National Party for stopping short of offering compensation [Yonhap report] to the millions of Koreans forced to work as laborers and prostitutes by the Japanese military.

Japan has been accused of committing war crimes in its colonies, and the two countries still suffer from diplomatic conflicts and competition over disputed territory [Xinhua report]. In February, Japanese Foreign Minister Katsuya Okada [official profile] apologized to South Korea [JURIST report] for its colonization of the Korean peninsula. At a meeting in Seoul with South Korean Foreign Minister Yu Myung-Hwan [official profile], Okada said that the Japanese government regrets its history of colonial rule over Korea and the alleged war crimes that resulted. Okada also praised the 1995 Murayama Statement [text], the most notable public apology for Japanese imperialism, in which the Japanese government pledged to promote peace with its Asian neighbors. Okada and Myung-Hwan agreed to work toward a more stabilized relationship [AFP report] between their countries.




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UN SG calls for greater efforts on indigenous rights
Dwyer Arce on August 10, 2010 9:50 AM ET

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[JURIST] UN Secretary-General Ban Ki-moon [official website] on Monday called on governments to work to improve the human rights conditions [statement] of the world's indigenous peoples. The statement, made on the International Day of World's Indigenous People [official website], urged world governments to come into compliance with the UN Declaration on the Rights of Indigenous Peoples [text], which was adopted by the UN [JURIST report] in 2007. The treaty outlines the global human rights of the approximately 370 million indigenous people and bans discrimination against them. Explaining the need for greater attention to the living conditions of the world's indigenous population, Ban stated:
Indigenous peoples have preserved a vast amount of humanity's cultural history, and speak a majority of the world's languages. [They] have inherited and passed on a wealth of knowledge, traditions and artistic forms. ... Indigenous peoples' issues are more prominent on the international agenda than ever before. But indigenous peoples still suffer disproportionate poverty, poor health and racism. Their languages, religions and cultural traditions are often shunned. ... In some countries, indigenous people are six hundred times more likely to contract tuberculosis than the general population. In others, an indigenous child can expect to die twenty years before his or her non-indigenous compatriots. Every day, indigenous communities face issues of violence, brutality and dispossession of their lands. We must increase indigenous peoples' access to vital services including education, health care and employment. We must continue to raise the status of indigenous peoples.
Ban also noted the findings of January's UN Report on the State of the World's Indigenous Peoples [official website], which he said "should alarm us all." The report found that indigenous peoples, who account for five percent of the world population, comprise 15 percent of the world's poor. It also found that indigenous peoples face systemic discrimination and exclusion from political life and are overrepresented among the illiterate and destitute. Ban called on world governments to renew their commitment to the rights of indigenous peoples.

The UN observes the International Day of the World's Indigenous People every August 9 in an effort to "promote the enjoyment of the rights of indigenous people and the full development of their distinct cultures and communities." The UN Declaration on the Rights of Indigenous Peoples was adopted by the UN General Assembly in 2007 after 143 member states voted to adopt the treaty and four member states—Australia, Canada, New Zealand and the US—voted against it. The four cited concerns that it conflicted with their countries' own laws, among other contentions. Amnesty International Australia (AIA) [advocacy website] on Monday criticized the Australian government [JURIST report] for not taking greater measures to eliminate racial discrimination against indigenous people, violating its obligations under the Declaration, which was endorsed by the Australian government last year [JURIST report]. AIA pointed to the Northern Territory National Emergency Response Act (NTER) [text, PDF] as the most pressing discriminatory policy, interfering with almost every aspect of indigenous life.




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Guantanamo detainee agrees to plea deal at military tribunal
Dwyer Arce on August 10, 2010 8:51 AM ET

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[JURIST] Sudanese Guantanamo Bay [JURIST news archive] detainee Ibrahim Ahmed Mahmoud al Qosi [DOD materials; JURIST news archive] on Monday reached a plea agreement with the US government setting out the maximum sentence he can receive at his military tribunal [JURIST news archive]. The details of the plea agreement will remain sealed until he is released from prison [Al Arabiya report]. According to al Qosi's lawyers, the government will allow him to serve his sentence at Camp 4, a facility at Guantanamo reserved for the best behaved detainees. Additionally, al Qosi is said to have waived credit for the eight years he has spent in detention. Also on Monday, jury selection in his case began. The jury will be composed of military officers [WP report] who will consider the evidence against al Qosi and determine a sentence for him, but, if the jury sentence exceeds that set out in the plea agreement, it sentence will be set aside. Before the agreement, al Qosi faced possible life imprisonment after pleading guilty [JURIST report] to supporting al Qaeda [GlobalSecurity backgrounder] in their hostilities against the US since 1996, acting as the group's cook and accountant in the 1990s and as a bodyguard for Osama bin Laden [CFR profile] in later years.

Al Qosi's plea marks the fourth time a Guantanamo detainee has been convicted by a military tribunal since the detention center opened in 2002 and the first time a captive has been convicted since the Obama administration ordered the facility shut down [JURIST report] in 2009. The American Civil Liberties Union (ACLU) [advocacy website] recently reiterated its call to end military commissions [press release] and try Guantanamo detainees in civilian courts. Al Qosi has been detained at Guantanamo since he was transferred there from Afghanistan in 2002. In December, a military judge ruled that the US government could partially amend the charges [JURIST report] against al Qosi by changing his jurisdictional basis but could not include four additional years of alleged activities under the charges. In October, military judges granted continuances [JURIST report] for prosecutors in the case against al Qosi. At the time, it was expected that the continuances would make way for a decision on whether to hold the remaining Guantanamo detainee proceedings in civilian or military court.




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Bangladesh bans corporal punishment in schools following court order
Ann Riley on August 10, 2010 8:39 AM ET

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[JURIST] The Bangladeshi Ministry of Education [official website] on Monday banned the use of corporal punishment in all schools across the country. Following a circular order [BD News 24 report] issued by Education Secretary Ataur Rahman, calling the form of punishment "misconduct," teachers found guilty of beating children will now face disciplinary action [BBC report]. The directive follows interim orders [press release] from the Bangladeshi Supreme Court [official website] in July requiring the investigation and prosecution of such corporal punishment and the public instruction to all schools to refrain from utilizing corporal punishment of any kind. The Bangladesh Legal Aid and Services Trust (BLAST) and Ain o Salish Kendra (ASK) [advocacy websites] initially challenged the government's failure to respond to incidents of corporal punishment after a 10-year-old boy committed suicide after being beaten by his teacher. BLAST and ASK argued that the lack government action violated fundamental and international rights under the Constitution, the Convention on the Rights of the Child, the International Covenant on Civil and Political Rights, Convention on the Elimination of All Forms of Discrimination against Women, and the Convention on the Rights of Persons with Disabilities [texts].

Corporal punishment is widespread and prevalent in Bangladesh. In 2009, the UNICEF [official website] released a report documenting the frequent physical abuse of children [Reuters report] at home, school and work. The Opinions of Children of Bangladesh on Corporal Punishment [text, PDF] revealed that 91 percent of children faced physical abuse at school and that many teachers continue to use switches, canes and sticks. Bangladesh has previously been scrutinized for other human rights violations. In 2007, the EU monitored and expressed concern over possible human rights violations [JURIST report] in Bangladesh. Earlier that year, Reporters Without Borders [advocacy website] criticized Bangladeshi censorship and violence against journalists, and the US Department of State (DOS) [official website] expressed concerns about due process for people detained under Bangladesh's emergency rules [JURIST report].




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US military judge rules Khadr confessions admissible at trial
Ann Riley on August 10, 2010 7:33 AM ET

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[JURIST] US military judge Army Colonel Patrick Parrish on Monday ruled that confessions by Canadian Guantanamo Bay [JURIST news archive] detainee Omar Khadr [DOD materials; JURIST news archive] are admissible evidence in his US military commission trial. Khadr's US military lawyer, Lt.-Colonel Jon Jackson, claimed [motion, PDF] that his statements were illegally obtained through threats of rape and death by interrogators. Prosecutors argued that they did not rely on Khadr's interrogation confessions [Reuters report] and that, according to intelligence agents, Khadr spoke freely [BBC report]. Parrish also ruled that video that US forces found weeks after the battle of Khadr helping al Qaeda operatives make and plant bombs in Afghanistan would be admissible. Also Monday, Khadr formally pleaded not guilty to murder and terrorism charges [JURIST report] against him for allegedly throwing a grenade that killed one US soldier and injured another. Khadr's trial, scheduled to begin on Tuesday [JURIST report] at Guantanamo Bay, is the first contested military commission trial under the Obama administration. If Khadr is found guilty, he could face a life sentence.

On Friday, the US Supreme Court [official website] refused to block the military trial of Khadr, issuing a one-line order denying the petition for a stay [JURIST report] with no noted dissents and offering no explanation of the ruling. Jackson filed a petition [JURIST report] last week asking the Supreme Court either to issue a writ of mandamus [Cornell LII backgrounder] forcing the US Court of Appeals for the District of Columbia Circuit [official website] to rule on a similar petition or for the Supreme Court to grant the stay because there was little time before the trial. Last month, the US District Court for the District of Columbia [official website] allowed Khadr to amend [JURIST report] his 2004 habeas corpus petition but refused to lift the stay on the petition pending the conclusion of his military commission. Also in July, Khadr rejected a plea deal [JURIST report] offered by the US government, which would have resulted in a five-year prison sentence. Khadr's defense lawyers have repeatedly sought his repatriation [JURIST report] to Canada on the basis that the Canadian government's refusal to request repatriation from the US violates the Canadian Charter of Rights and Freedoms [text].




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