[JURIST] The UN warned [press release] in a report [text] Friday that government restrictions on the right to freedom of opinion and expression on the Internet impinge on human rights. Article 19 of the International Covenant on Civil and Political Rights [text] outlines the types of restrictions that would be considered breaches of party states' obligations to guarantee the right to freedom of expression. UN Special Rapporteur on freedom of expression Frank LaRue [official profile] provided examples of governments restricting, controlling, manipulating and censoring Internet content without any legal basis. LaRue suggested that, because of the unique features of the Internet, governments have increased restrictions on Internet use out of fear of mobilization and rapid dissemination of information. The report suggested that Internet restrictions stifle other fundamental rights:
The right to freedom of opinion and expression is as much a fundamental right on its own accord as it is an "enabler" of other rights, including economic, social and cultural rights, such as the right to education and the right to take part in cultural life and to enjoy the benefits of scientific progress and its applications, as well as civil and political rights, such as the rights to freedom of association and assembly. Thus, by acting as a catalyst for individuals to exercise their right to freedom of opinion and expression, the Internet also facilitates the realization of a range of other human rights.
LaRue acknowledged that there are some exceptions to the right to freedom of expression, namely types of expression that infringe on the rights of others, like child pornography, hate speech and defamation.
[JURIST] The US Court of Appeals for the Ninth Circuit [official website] Thursday rejected [opinion, PDF] a prisoner's attempt to have new crack cocaine sentencing guidelines applied retroactively to reduce his sentence. The three-judge panel found that it could not infer congressional intent to apply the Fair Sentencing Act [S 1789 materials] to prisoners already convicted and serving the prior mandatory minimum. The Fair Sentencing Act amended existing law to reduce the current sentencing ratio from 100:1 to 18:1 to make it more in line with the penalties for powder cocaine. Lyndon Marlon Baptist, a.k.a. L-Dog, was convicted for facilitating a sale of 14 grams of crack cocaine between his cousin and an informant. The district court judge sentenced him to the mandatory minimum of five years in prison, saying the punishment was disproportionate to the crime and morally wrong. The Ninth Circuit said that the emergency powers Congress granted to the US Sentencing Commission (USSC) [official website] to implement the new law did not mean it was supposed to apply retroactively. Nor could such intent be inferred from a letter [text, PDF] sent by the sponsors of the law to US Attorney General Eric Holder [official website] asking him to apply the law's "modified mandatory minimums to all defendants who have not yet been sentenced, including those whose conduct predates the legislation's enactment." The court said the letter in effect conceded that it was not supposed to apply to those already serving sentences. Further, Baptist's constitutional claims of cruel and unusual punishment and an equal protection violation were rejected as such claims consistently have been by the courts. Thus, the court said it was compelled to find the Fair Sentencing Act's lower sentences could not apply retroactively. But the judges expressed their reluctance in their holding:
As individual judges, we believe that the result that we reach in this case—affirming a sentence of sixty months' imprisonment for a minor drug offense under a law that Congress appears to have concluded was groundless and racially discriminatory—subverts justice and erodes the legitimacy of the criminal justice system. We are without power, however, to undo the injustice that we are compelled to authorize when we affirm the congressionally mandated sentence that the district judge understandably declared made his "stomach hurt[ ]" because it was "disproportionate [with respect to] African Americans" and "wrong from a moral sense."
All the circuit courts that have heard such challenges have held that the Fair Sentencing Act is not meant to apply retroactively.
Earlier this week, Holder testified before the USSC urging them to apply the Fair Sentencing Act retroactively [JURIST report]. He argued "there is simply no just or logical reason why their punishments should be dramatically more severe than those of other cocaine offenders." The USSC is considering retroactively applying the Fair Sentencing Act ,which was signed into law [JURIST report] by President Barack Obama last year. Under the existing law passed in 1986, an individual possessing five grams of crack cocaine would receive a mandatory five-year prison sentence, while an individual possessing powder cocaine would need to have 100 times that amount to receive the same sentence. Human Rights Watch (HRW) [advocacy website] praised [press release] the bill's passage, stating that the old law also created a racial disparity, with African Americans comprising 79.8 percent of all offenders sentenced for crack cocaine violations. In April 2008, a study released by the USSC reported that more than 3,000 prison inmates convicted of crack cocaine offenses had their sentences reduced [JURIST report] under an amendment to the Federal Sentencing Guidelines [materials]. In 2007, the USSC voted unanimously [JURIST report] to give retroactive effect to an earlier sentencing guideline amendment that reduced crack cocaine penalties.
[JURIST] A United Nations High Commissioner for Refugees (UNHCR) [official website] spokesperson on Friday condemned [press release] Qatar's [BBC backgrounder] extradition of rape victim Eman Al Obeidi to her home country of Libya [BBC backgrounder]. UNCHR spokesperson, Adrian Edwards, said that Qatar violated international law by deporting Al Obeidi after she was ruled a refugee by the UNHCR and in its custody. Al Obeidi was prevented by Qatar government forces from leaving with the UNHCR for Romania and instead diverted to a plane bound for Libya. Al Obeidi is currently in Benghazi [Al-Jazeera Blog report] under the protection of the rebel government [CNN report], the National Transition Council [political website]. Al Obeidi became internationally known when she entered the Rixos Hotel on March 26 and told the international press corps that she had been stopped at a checkpoint by Mummar Gaddafi's [BBC profile; JURIST news archive] forces and beaten and gang-raped for 2 days. CNN had the exclusive interview:
Libyan government spokesperson Mussa Ibrahim stated that those she accused of rape are pursuing charges against her [Guardian report] for a wrongful accusation and that any investigations had been dropped due to Al Obeidi refusing a medical examination. Qatar has not responded to any of the criticism, nor explained their decision to deport her.
Earlier this week, a three-person commission for the UN Human Rights Council (UNHRC) [official website] appointed to investigate violence in Libya published a report [JURIST report] saying that government forces have committed crimes against humanity and war crimes under orders from Libyan leader Mummar Gaddafi and other high-ranking officials. Last month, International Criminal Court (ICC) [official website] Chief Prosecutor Luis Moreno-Ocampo announced he is seeking arrest warrants [JURIST report] for Gaddafi and two others in his "inner circle" on charges of crimes against humanity. Ocampo has since sent a letter to Libyan Foreign Minister Abdelati Obeidi, warning against diplomats covering up crimes for Gaddafi. Further, Ocampo alleged that cover-ups in Libya go so far that any trace of a crime is destroyed. Ocampo revealed in April that his office had uncovered evidence [JURIST report] that Gaddafi planned to attack civilians to forestall regime-toppling revolution. Ocampo indicated that the plans were made in response to the conflicts in Tunisia and Egypt and included shooting civilians. In March, Ocampo told the press that he was 100 percent certain his office would bring charges [JURIST report] against Gaddafi. Also in March, the ICC launched a probe into allegations of crimes against humanity [JURIST report] by the Libyan government.
[JURIST] A judge for the US District Court for the Eastern District of Virginia [official website] on Friday held a hearing to determine whether he should reconsider a ruling [opinion, PDF; JURIST report] he issued last week striking down a ban on corporate donations to federal political candidates. US prosecutors said they failed to cite key precedent [Bloomberg report] related to campaign finance, therefore District Judge James Cacheris did not have enough information to rule that the ban on direct corporate financing was unconstitutional. In May, Cacheris dismissed a criminal count against two men charged with illegally reimbursing individuals for almost $200,000 in contributions [WP report] to Hillary Clinton's 2006 senate and 2008 presidential primary campaign. In dismissing the count, Cacheris stated that the Supreme Court [official website; JURIST news archive] ruling in Citizens United [opinion, PDF; JURIST report] had dissolved the legal underpinnings for the federal ban against direct contributions from corporations to a candidate. The US attorneys asked Cacheris to consider Federal Election Commission v. Beaumont [opinion], where the Supreme Court specifically upheld a ban on corporate contributions to election campaigns.
Campaign finance regulation has been in a state of flux since Citizens United was decided in January of last year. In May, the US Court of Appeals for the Eighth Circuit [official website] upheld [opinion, PDF; JURIST report] a Minnesota campaign financing law prohibiting direct contributions to candidates and affiliated entities. A judge for the US District Court for the Western District of Wisconsin [official website] in April dismissed two challenges [JURIST report] to campaign financing schemes for Wisconsin Supreme Court elections. Last March, the Supreme Court heard oral arguments [JURIST report] in two consolidated campaign finance cases. In Arizona Free Enterprise Club's Freedom Club PAC v. Bennett [oral arguments transcript, PDF; JURIST report], the court heard arguments on whether the First Amendment [text] forbids states from providing publicly financed candidates with additional government subsidies, which are triggered by independent expenditure groups' speech against such candidates or by the candidates' privately financed opponents. In McComish v. Bennett, the court will determine whether Arizona's matching funds law and a law regulating campaign financing to equalize resources among candidates and interest groups, rather than advancing a compelling state interest in the least restrictive manner, violate the First and Fourteenth Amendments [text].
In the district courts, the government argued for dismissal of these actions under the AIA. On further reflection, and on consideration of the decisions rendered thus far in the ACA litigation, the United States has concluded that the AIA does not foreclose the exercise of jurisdiction in these cases. Unique attributes of the text and structure of the ACA indicate that Congress did not intend to dictate a single pathway to judicial review of Section 5000A - i.e., failure to maintain minimum essential coverage starting more than two and a half years from now, in January 2014; payment of the tax penalty starting nearly four years from now, in April 2015; and, only then, commencement of an action seeking a tax refund.
In their brief [text], Liberty University [academic website] argued that the fines levied under health care reform do not constitute a tax and that judicial review was the only way to challenge health care reform. Virginia made similar arguments [text]. Liberty University's lawsuit appeals a decision to dismiss its challenge of the individual mandate, while Virginia is seeking to uphold a ruling that it is unconstitutional.
[JURIST] The Supreme Court of Spain [official website, in Spanish] on Friday overturned the convictions of four individuals charged with distributing neo-Nazi [JURIST news archive] propaganda. The four men were convicted [DPA report] and sentenced to up to three and a half years in prison by a court in Barcelona in October 2009 for advocating genocide and belonging to an illegal association. The men had been selling books and materials [AP report] that defended the Holocaust [JURIST news archive] from their bookstore and publishing house in Barcelona. The Court reasoned that disseminating Nazi ideology is not a crime [El Pais report, in Spanish] unless used to incite violence or certain danger, or create a hostile climate.
Several countries have taken strong stances against neo-Nazi propaganda and hate crimes. In July 2010, a Russian court sentenced 14 neo-Nazis [JURIST report], including a group leader and several teenagers, to jail terms for committing hate crimes against ethnic minorities in the country. In November 2009, the German Federal Constitutional Court upheld [JURIST report] legislation prohibiting public support and justification of the Nazi regime. The court reasoned that the restriction was necessary to protect public peace and the dignity of the victims of the Nazis, which it said were "supreme constitutional values" in Germany.
[JURIST] Ratko Mladic [ICTY backgrounder, PDF; JURIST news archive] made his first appearance [video, in Serbian] Friday at the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website], contesting the charges while simultaneously asking for more time to review them. Characterized by many media outlets as "defiant," Mladic saluted several times through the proceedings, referred to himself as "General Mladic" and smiled at some survivors of the massacre of Srebrenica [JURIST news archive] who had come to watch the proceedings. Mladic, contesting the legitimacy of the court, refused to plead and requested a private audience to discuss his medical problems with the three-judge panel. He admitted that he received the indictment but had not read it and refused to let the court read it to him. Following the rules of The Hague, Judge Alphons Orie read his indictment regardless.
Observers noted that Mladic appeared unable to use his right arm, and rumors have circulated that he has suffered two or three strokes and currently has cancer. Orie set a new court date for July 4, and said if Mladic refuses to plead then to the 11 charges [amended indictment, PDF] leveled against him, a not guilty plea will be entered. The court also determined there are no major factors to delay the trial [B92 report].
Serbian authorities captured Mladic [JURIST report] last month, ending a 16-year manhunt for the former general colonel and commander of the army of the Serbian Republic of Bosnia and Herzegovina. Mladic lost his final appeal in Serbia to avoid extradition, and was transported to The Hague late Tuesday night [JURIST reports]. Mladic faces charges of genocide and crimes against humanity, including murder, political persecution, forcible transfer and deportations, cruel treatment and the taking of peacekeepers as hostages. He is most infamous for ordering the slaughter of 8,000 Muslim men and boys in the massacre of Srebrenica during the Bosnian civil war [JURIST news archive].
[JURIST] Amnesty International (AI) [advocacy website] urged Rwanda to review laws it claims have a "genocide ideology" that are being used to silence critics and dissenters, in a report [text, PDF] published Friday. The report says that the government of Rwandan President Paul Kagame [official website; BBC profile] has expressed a commitment to reviewing laws that criminalize criticism, but recent prosecution of journalists and other opposition leaders show that the situation has not changed. AI claims that Rwanda has broadly drafted hate speech laws passed since the 1994 genocide [HRW backgrounder] that are being used to criminalize legitimate criticism and expression that does not rise to the level of hate speech. The report claims that Kagame used restrictive regulatory and defamation laws to clampdown on newspaper criticism and that a prominent opposition candidate, Bernard Ntaganda, was prosecuted and jailed on politically motivated charges right before the last presidential election. The report says:
[f]reedom of expression in Rwanda has been unduly restricted for many years. The months leading up to the August 2010 presidential elections, which [Kagame] won with 93 per cent of the vote, were marked by a clampdown on freedom of expression. The Rwandan government has expressed a commitment to review laws which criminalize criticism, but recent trials of journalists and opposition politicians suggest that Rwanda's clampdown on critics shows no sign of abating.
The Kagame administration has denied the claims [Reuters report] in the report saying that Rwanda has a vibrant media community and political discourse. It calls the report inaccurate and partisan.
Last September, a Rwandan court sentenced Deogratias Mushayidi [AI backgrounder] to life in prison for recruiting rebels and trying to incite violence against the Kagame-led government. Mushayidi was the leader of the Pact for the Defence of the People, the former head of the Rwandan Journalists' Association and a member of the ruling party [BBC report] before becoming a vocal critic. In April 2010, Rwandan authorities arrested [JURIST report] opposition presidential candidate Victoire Ingabire Umuhoza [campaign website], accusing her of denying the 1994 genocide. The arrests come at a time when Kagame has received criticism [press release] from Human Rights Watch (HRW) [advocacy website] for his treatment of opposition parties. Last August, Peter Erlinder, former defense counsel at the International Criminal Tribunal for Rwanda, argued [JURIST op-ed] that even though the White House has become more openly critical of Rwandan President Paul Kagame's regime, the US and international community at large must take a much closer look at those in power before true reconciliation will come to Rwanda.
[JURIST] The Alabama Senate and House of Representatives [official websites] on Thursday approved a bill [HB 56 text; materials] expanding restrictions on undocumented immigrants. The House voted 67-29 and the Senate voted 25-7 to pass the bill that includes measures comparable to those passed in Arizona [JURIST report] last year. The bill permits police officers to detain a person stopped for a traffic violation if the officer has "reasonable suspicion" the person is in the country illegally. The officer must then try to determine the individual's identity by checking other records if the motorist is unable to provide documentation. The bill also requires businesses to use the federal E-Verify system [official website] to determine whether potential employees are legal residents. Businesses cited multiple times for hiring undocumented workers could lose their business licenses. Furthermore, undocumented immigrants are prohibited from applying for a job, and anyone transporting or harboring undocumented immigrants will be punished by a fine or jail time. The bill indicates that unlawful immigration increases education costs, crime, and economic hardship, and that the bill protects the public interest of Alabama citizens:
The State of Alabama further finds that certain practices currently allowed in this state impede and obstruct the enforcement of federal immigration law, undermine the security of our borders, and impermissibly restrict the privileges and immunities of the citizens of Alabama. Therefore, the people of the State of Alabama declare that it is a compelling public interest to discourage illegal immigration by requiring all agencies within this state to fully cooperate with federal immigration authorities in the enforcement of federal immigration laws. The State of Alabama also finds that other measures are necessary to ensure the integrity of various governmental programs and services.
Earlier this week, the American Civil Liberties Union (ACLU), the National Immigration Law Center (NILC) [official websites] and a coalition of other civil rights groups filed a class action [JURIST report] lawsuit challenging a similar Georgia immigration law. Last month, the US Supreme Court [official website; JURIST news archive] upheld [JURIST report] in Chamber of Commerce v. Whiting [Cornell LII backgrounder; JURIST report] an Arizona employment law that imposes penalties on employers who hire illegal immigrants is not preempted by the Immigration Reform and Control Act (IRCA) [text]. The ruling opens the door for states to enact similar restraints on immigration. Several states have already enacted or proposed [JURIST reports] Arizona-style immigration laws. In March, the Oklahoma State Senate [official website] approved [JURIST report] a bill that would give police officers the authority to question the citizenship status of any person lawfully stopped for a traffic violation and arrest them without a warrant if the officer has probable cause to believe the person is in the country illegally. Also in March, Utah Governor Gary Herbert [official website] signed an immigration law requiring police to check the immigration status of anyone arrested for an alleged felony or serious misdemeanor, but a federal judge blocked [JURIST reports] it less than 24 hours after it took effect. In February, the Indiana Senate [official website] approved a bill [JURIST report] requiring suspected illegal immigrants to provide proof of their legal status and calls for all public meetings, websites, and documents to be in English only.
[JURIST] The US Court of Appeals for the Second Circuit [official website] ruled [opinion, PDF] Thursday that the New York City Department of Education [official website] can enforce a rule prohibiting outside groups from using school facilities for after-school worship services. The challenge was brought by the Bronx Household of Faith [church website], which was denied use of school facilities after applying through the city's procedures. New York schools allow the facilities to be used for "social, civic and recreational meetings and entertainments, and other uses pertaining to the welfare of the community," as long as it is "nonexclusive and ... open to the general public," under NY Education Code § 414(1)(c) [text]. The city issued a new Standard Operating Procedures Manual (SOP) [text, PDF] pursuant to that provision, specifically § 511, that restricts use of school facilities for religious worship services. The Bronx Household of Faith wanted to use the school for worship services which included preaching, teaching, and giving of personal testimonials, followed by a group meal. The court found the rule did not violate the First Amendment [Cornell LII backgrounder] protection for freedom of expression because it was a reasonable conduct restriction. The court said that even though religious worship includes expression, the city was reasonably concerned with violating the Establishment Clause [Cornell LII backgrounder] because "[t]he conduct of a 'religious worship service' has the effect of placing centrally, and perhaps even of establishing, the religion in the school." The court concluded:
that the challenged rule does not constitute viewpoint discrimination because it does not seek to exclude expressions of religious points of view or of religious devotion, but rather excludes for valid non-discriminatory reasons only a type of activity—the conduct of worship services. We also conclude that because Defendants reasonably seek by the rule to avoid violating the Establishment Clause, the exclusion of religious worship services is a reasonable content-based restriction, which does not violate the Free Speech Clause.
Judge John Walker dissented, arguing that the SOP rule was neither a valid view-point restriction nor supported by a reasonable concern of violating the Establishment Clause.
[JURIST] Retaliatory killings in the Ivory Coast [JURIST news archive] between factions loyal to ousted former president Laurent Gbagbo and current president Alassane Ouattara [BBC profiles] have continued, Human Rights Watch (HRW) [advocacy website] reported [text] Thursday. Violence has riddled the nation since last November's disputed election, after which Ouattara was eventually declared the winner. Gbagbo had to be forcefully removed from office and is currently under the protection of UN personnel [CNN report]. Despite both Gbagbo's and Ouattara's telling their forces to stop fighting, hostility continues, with HRW reporting approximately 150 murders by Ouattara supporters and 220 by Gbagbo supporters:
In addition to killings, Human Rights Watch interviewed young men who had been detained by the Republican Forces and then released, and documented the arbitrary detention and inhumane treatment of scores more young men - often arrested for no other apparent reason than their age and ethnic group. Nearly every former detainee described being struck repeatedly with guns, belts, rope, and fists to extract information on where weapons were hidden or to punish them for alleged participation in the Young Patriots, a pro-Gbagbo militia group. Several described torture, including forcibly removing teeth from one victim and placing a burning hot knife on another victim, then cutting him.
HRW recommended that Ouattara immediately investigate the killings and detainments, and cooperate with and seek aid from the international community and the UN. The report also asked the UN Security Council [official website] to release a report on the violence, and the UN Operations in the Ivory Coast [official website] to significantly increase their patrols and inspections of detention centers.
Last month, Ouattara asked the International Criminal Court (ICC) [official website] to launch an investigation [JURIST report] into alleged crimes committed as a result of the disputed presidential elections last November. Chief Prosecutor Luis Moreno-Ocampo [official profile] then submitted a request to the court [JURIST report] to begin an investigation into the Ivory Coast political conflict, but a formal investigation has yet to begin. In April, HRW urged Ouattara to conduct an investigation [JURIST report] into alleged atrocities carried out by his forces in its attempts to secure the presidency. According to the report, the pro-Ouattara forces, known as the Republican Forces of the Ivory Coast, killed more than 100 civilians, raped at least 20 supporters of Gbagbo and burned at least 10 villages in March. Also last month, the International Committee of the Red Cross (ICRC) [official website] reported the deaths of at least 800 civilians [JURIST report] in the Ivory Coast town of Duekoue as a result of intercommunal violence.
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