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Legal news from Thursday, February 17, 2011 |
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UN Security Council weighs Kosovo organ trafficking investigation
Daniel Makosky on February 17, 2011 5:06 PM ET

[JURIST] UN Special Representative to Kosovo Lamberto Zannier on Wednesday requested [press release] that the UN Security Council [official website] open an independent investigation into alleged incidents of organ trafficking [JURIST news archive], inhuman treatment and other crimes by the Kosovo Liberation Army (KLA) [GlobalSecurity backgrounder] during the 1998-1999 Kosovo war [BBC backgrounder; JURIST news archive]. The request follows shortly after the Council of Europe (COE) [official website] called for a similar inquiry [JURIST report] last month, and stems from a report [text; JURIST report] authored by COE member Dick Marty [BBC profile] indicating that Kosovar Prime Minister Hasham Thaci [official profile] served as the "boss" of an illegal criminal enterprise that trafficked human organs and drugs during the war. US, British and German ambassadors to the UN expressed reservations [Reuters report] about establishing an ad hoc investigatory mechanism, as well as their support for the European Union Rule of Law Mission in Kosovo (EULEX) in conducting the inquiry. Serbian Foreign Minister Vuk Jeremic, however, argued that EULEX is inadequately equipped to do so, as the allegations include activities throughout Europe and in Asia and Africa.
The COE report alleges that Thaci was the leader of the KLA Drenica Group, a criminal network that controlled the heroin trade and the black market trafficking of kidneys of executed Serbian and Albanian war prisoners. News of the report's accusations prompted the government to respond [press release], denying the allegations and calling them an attempt to harm Thaci's reputation following his party's victory in the nation's parliamentary elections last year. Claims of Kosovo's involvement in human organ trafficking originated in 2008 when former prosecutor for the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] Carla Del Ponte [BBC profile; JURIST news archive] alleged in a book [JURIST report] about her time at the tribunal that roughly 300 Serbian and other non-Albanian prisoners were victims of organ trafficking during the war. That year, Serbian prosecutors condemned Albania's refusal to initiate [JURIST report] an investigation into allegations of organ trafficking in Kosovo. Albanian Prosecutor General Ina Rama refused to cooperate with Serbian war crimes prosecutor Vladimir Vukcevic [official website] and said that her country would only pursue the allegations if the ICTY decided to reopen its investigation.


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Federal judge denies immunity to former Somalia PM
Daniel Richey on February 17, 2011 1:39 PM ET

[JURIST] A judge for the US District Court for the Eastern District of Virginia [official website] ruled Tuesday that former Somali prime minister and defense minister Mohamed Ali Samantar is not entitled to legal immunity from civil lawsuits. Samantar, who has lived in the greater Washington, DC, area for more than 15 years, was sued in 2004 by two Somali men who alleged he spearheaded a campaign of ethnic repression against the northern Somali Isaaq clan during his tenure in office. Last June, the US Supreme Court [official website; JURIST news archive] unanimously ruled [opinion, PDF; JURIST report] in Samantar v. Yousef [Cornell LII backgrounder; JURIST report] that the Foreign Sovereign Immunities Act of 1976 (FSIA) [28 USC §§ 1330, 1602 et seq. text] does not provide foreign officials immunity from civil lawsuits In affirming the decision [opinion, PDF] of the US Court of Appeals for the Fourth Circuit [official website], the Supreme Court held that the law was intended only to codify existing international and common law regarding suits against foreign states, not individual members of foreign governments. The court remanded the case back to the Eastern District of Virginia, instructing the lower court to resolve questions of possible immunity under common law and other defenses.
Respondents are seeking damages from Samantar under the Torture Victim Protection Act of 1991 [28 USC § 1350 text]. Samantar was minister of defense and later prime minister of Somalia from 1980 to 1990. Respondents claim that Samantar authorized torture and the extrajudicial killing of them and members of their family. The Isaaq clan, of which the respondents are members, was subjected to systematic persecution during Samantar's time in office before the collapse of the Somali government in 1991 [DOS backgrounder]. Samantar fled Somalia before the collapse of the government and now resides in Virginia.


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Rights group alleges new evidence of detainee abuse by Egypt military
Julia Zebley on February 17, 2011 1:07 PM ET

[JURIST] Amnesty International (AI) [advocacy website] on Thursday released a report [text] asserting new evidence that the the Supreme Military Council of Egypt has been torturing protester-detainees. Through various detainee accounts, AI stated that individuals were tortured "to intimidate protesters and to obtain information about plans for the protests." In addition, protesters contend that they were told to confess that they were trained by the Israeli or Iranian governments. AI's director for the Middle East and North Africa Malcolm Smart stated, "The Egyptian military authorities have committed publicly to creating a climate of freedom and democracy after so many years of state repression. Now they must match their words with direct and immediate action." Last week, Human Rights Watch (HRW) published similar concerns [JURIST report], specifically about the detention of journalists, human rights activists, and protesters. UN High Commissioner for Human Rights Navi Pillay [official profile] has also called on Egyptian authorities to immediately release lawyers, journalists and human rights activists [JURIST report] who have been arrested and suggested that violence against protesters [JURIST report] has been planned. The AI report demands immediate disclosure of the names and whereabouts of all detainees, and for either official charges to be drawn against them, or their prompt release.
Earlier this week the Supreme Council appointed a panel of judges [JURIST report] to amend Egypt's constitution [text] prior to public referendum. This decision was part of the transition plan put in place by ousted president Hosni Mubarak [Al Jazeera profile] before leaving office earlier this month. Last week the military pledged to lift the emergency laws [JURIST report] that have been in place since Mubarak assumed power. Prior to Mubarak's resignation, Egypt's government had reached out [JURIST report] to various opposition leaders in the wake of demonstrations that swept the country. Among those in the opposition that have been approached are the Muslim Brotherhood, the oldest and largest Islamic political group in the world. According to some commentators, the unrest in Egypt is closely related to the recent civil unrest in Tunisia [JURIST op-ed] that culminated last month with the resignation of President Zine al-Abidine Ben Ali [JURIST report].


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California Supreme Court agrees to rule on Prop 8 standing issue
Daniel Richey on February 17, 2011 12:43 PM ET

[JURIST] The Supreme Court of California [official website] announced Wednesday that it will decide a critical procedural issue [release, PDF] to determine whether a pending federal appeal of the invalidation of Proposition 8 [text, PDF; JURIST news archive], California's same-sex marriage ban, can continue. In January, the US Court of Appeals for the Ninth Circuit [official website] asked [order, PDF; JURIST report] the Supreme Court to weigh in on whether supporters of Proposition 8 have standing to defend the measure when state officials have refused to do so. The issue requires the court to interpret Article II, Section 8 of the California Constitution [text, PDF] to determine:Whether ... the official proponents of an initiative measure possess either a particularized interest in the initiative's validity or the authority to assert the State's interest in the initiative's validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so. If the court answers in the negative, the Ninth Circuit would likely dismiss the case, and it is unclear whether the August invalidation [JURIST report] of Proposition 8 by the US District Court for the Northern District of California [official website] would stand. The parties disagree as to what effect a dismissal would have, and the circuit court noted the issue but did not address it.
When Judge Vaughn Walker of the Northern District of California struck down Proposition 8, then-governor Arnold Schwarzenegger and former attorney general and current Governor Jerry Brown [official website], who were originally defendants in the lawsuit, refused to continue defending the measure on appeal [JURIST report], leaving defendant-intervenors Project Marriage [advocacy website] and other groups to defend the law. In January, the Ninth Circuit also upheld [opinion, PDF] a lower court decision refusing to allow officials from Imperial County, California [JURIST report] to intervene, and Judge Stephen Reinhardt [FJC profile] issued a memorandum opinion [text, PDF] on his decision not to recuse himself [JURIST report]. The Ninth Circuit heard oral arguments [video; JURIST report] in the case, Perry v. Schwarzenegger [case materials] last December. The hearing was divided into two one-hour sessions, with the first section focusing on the issue of standing, and the second focusing on Proposition 8's constitutionality. In August, a three-judge panel for the Ninth Circuit issued a stay [JURIST report] on Walker's ruling, pending appeal.


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Hawaii legislature passes same-sex civil unions bill
Sarah Paulsworth on February 17, 2011 9:52 AM ET

[JURIST] Hawaii's Senate [official website] voted 18-5 [bill history] on Wednesday to give final approval to a bill [SB232, text] that will allow civil unions [JURIST news archive] for same-sex couples. Governor Neil Abercrombie (D) [official profile] must now sign the bill into law within 10 days, and the law could come into effect [CNN report] in January 2012. In a statement [text], Abercrombie said the bill "represents equal rights for all the people of Hawaii," adding "I have always believed that civil unions respect our diversity, protect people's privacy, and reinforce our core values of equality and aloha." If signed, the bill will not only recognize civil unions, but will also provide partners lawfully entering into them with "all the same rights, benefits, protections, and responsibilities under law" as are granted to individuals entering into marriage. Hawaii's House of Representatives approved the same bill [JURIST report] earlier this week. A similar bill was vetoed [JURIST report] in July by former governor Linda Lingle (R), who felt that, because it was an issue of "such significant societal importance," it was better suited for a vote in a public referendum. Hawaii would be the seventh state to offer essentially the same benefits and protections afforded to marriages to civil unions.
Earlier this month, Illinois Governor Pat Quinn (D) signed a bill [JURIST report] legalizing same-sex civil unions in the state. The "Illinois Religious Freedom and Civil Union Act," seeks to provide "adequate procedures for the certification and registration of a civil union" as well as to provide "persons entering into a civil union with the obligations, responsibilities, protections, and benefits afforded or recognized by the law of Illinois to spouses." Additionally, it would allow religious institutions within the state to choose whether to observe or officiate the union. Opponents fear that this bill will move Illinois closer to legalizing same-sex marriage [JURIST news archive] and threaten the sanctity of marriage. The new law is set to take effect on June 1. In contrast, last month the Wyoming Senate voted 20-10 in favor of a constitutional amendment [JURIST report] that would prevent the state from recognizing same-sex marriages from any jurisdiction. The decision, which was split down party lines, will advance to the state House of Representatives, where it needs a two-thirds vote to succeed. If approved there, it will need to be signed by Governor Matt Mead (R) and then appear as a referendum item on the 2012 ballot. The following day, the House Judiciary Committee also voted 5-4 [Star-Tribune report] to defeat House Bill 150, which would have recognized civil unions in the state.


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ICTY suspends Karadzic trial for 6 weeks
Ann Riley on February 17, 2011 8:55 AM ET

[JURIST] The trial chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] on Wednesday ordered the suspension [decision, PDF] of the trial of former Bosnian Serb leader Radovan Karadzic [case materials; JURIST news archive] for six weeks beginning after witness testimonies already scheduled for March. The postponement allows Karadzic to review 32,000 pages and 200 hours of video material that the prosecution sent to him in January. In requesting the suspension, Karadzic alleged that he was prejudiced when he did not have all of the Rule 68 [text, PDF] exculpatory material in the possession of the Prosecution before he started his cross-examination of witnesses. The trial chamber orally granted the motion last week and wrote in its decision:The suggestion by the Prosecution that 32,000 pages of documents and 200 hours of video ... can be disclosed en masse to the Accused on a single day, with an expectation that he should be able to continuously review and incorporate this volume of material, if necessary, into the conduct of his defence is untenable. ... The Chamber is not satisfied that continuing with the trial proceedings, and allowing the Accused to later recall certain witnesses for further cross-examination following his review of the Disclosed Material, if necessary, is sufficient, in this instance, to ensure his fair trial rights. Moreover, it will not be, in practical terms, conducive to the smooth conduct of the trial. In reaching this conclusion the Chamber also notes that the pattern of disclosure violations in this case has continued and is mindful of the impact which this has had on the smooth and orderly conduct of the trial. ... The Chamber reiterates its deep concern about the volume of potentially exculpatory material which the Prosecution continues to disclose to the Accused, and the impact which this has had on the Accused's preparations and the smooth conduct of this trial. Karadzic faces 11 war crimes charges [indictment, PDF], including counts of genocide and murder, for alleged crimes he committed during the 1992-1995 war in Bosnia and Herzegovina. Karadzic is defending himself in court and has denied all of the charges against him.
Karadzic's trial was previously suspended [JURIST report] in November for a month to allow him to read 14,000 pages of evidence the prosecution sent to him in October. The court's decision to delay the trial was partially because of the prosecution's repeated violations of its obligation to disclose evidence to the accused. In September, the trial resumed [JURIST report] as Karadzic defended himself before the ICTY after repeated attempts to delay proceedings. The trial previously resumed in April [JURIST report], after the ICTY denied [judgment PDF, JURIST report] Karadzic's attempt [motion, PDF] to delay court proceedings, in which he argued a violation of his right to a fair hearing due to the court's rejection of evidentiary challenges. In March, Karadzic lost another motion to postpone his war crimes trial for charges committed during the Bosnia conflict. Following repeated delays in the proceedings, the ICTY judges warned in September that the trial might continue until 2014 [JURIST report], which is two years longer than expected.


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Tennessee judge finds new lethal injection procedures constitutional
Ann Riley on February 17, 2011 7:28 AM ET

[JURIST] A Nashville judge ended a four-month moratorium on executions Wednesday, declaring Tennessee's modified method of lethal injection [JURIST news archive] constitutional. In November, Davidson County Chancellor Claudia Bonnyman [official profile] ruled that the state's method of lethal injection violated [The Tennessean report] the Eighth Amendment [text] after lawyers for death row inmate Stephen Michael West [execution advisory] revealed evidence to the court that inmates were awake and in pain when the lethal drugs were administered. Bonnyman found that the current method did not specify a sufficient dosage of sodium thiopental, part of a three-drug "cocktail," to ensure the prisoner was fully anesthetized, allowing for "death by suffocation while the prisoner is unconscious." The state proposed a revised plan to confirm the prisoner is unconscious: having the warden call out his name, shake him, and brush his eyelashes. Bonnyman found the revised procedure, administering the two remaining drugs only once there were no signs of consciousness, constitutional [The Tennessean report]. After Bonnyman's November decision, the Tennessee Supreme Court [official website] temporarily stayed the executions [Nashville City Paper report] of four prisoners, effectively placing the second moratorium on executions [TN.gov backgrounder] in Tennessee in the last three years.
In September 2007, a federal judge held that Tennessee's revised death penalty protocols [text, PDF; JURIST report], devised earlier that year by the Tennessee Department of Corrections at the request of then-governor Phil Bredesen, did not ensure that prisoners' are properly anesthetized before they receive a lethal injection and thus constitute "cruel and unusual" punishment. Bredesen ordered a moratorium on executions [executive order, PDF; JURIST report] earlier that year and directed the Tennessee Department of Corrections to review the manner in which death sentences are administered. Bredesen accepted new protocols and the state conducted its first execution [JURIST report] under the new rules in May 2007. The protocol included more detailed guidelines for administering lethal injections but still includes a controversial three-drug "cocktail" which some said may be ineffective in preventing inmates from suffering a painful death [JURIST report]. The number of executions that took place in the US in 2010 was down 12 percent from 2009, according to the Death Penalty Information Center (DPIC) [advocacy website] annual report [text, PDF; JURIST report]. DPIC attributes the decrease in executions to several factors, including controversy over lethal injections [JURIST news archive]. The report also states that a recent poll shows 61 percent of Americans would choose various alternative sentences over the death penalty as the proper punishment for murder. Executions resumed in the US in April 2008 after the Supreme Court lifted an effective ban on the death penalty by upholding the constitutionality of lethal injection [JURIST report].


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