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Legal news from Friday, November 18, 2011




UN rights expert urges WTO to make right to food a priority
Rebecca DiLeonardo on November 18, 2011 2:04 PM ET

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[JURIST] UN Special Rapporteur on the Right to Food Olivier De Schutter [official website] said Friday that the World Trade Organization (WTO) [official website] must make food security a top priority [UN News Centre report; report, PDF] at its global trade talks next month. De Schutter stressed that WTO policies do not adequately ensure the right to food in developing countries, especially as international food prices are on the rise. He expressed concern that existing WTO trade regulations leave developing countries vulnerable drastic price increases which can lead to food shortages. The rapporteur recommended that the WTO review and make appropriate changes to its polices to allow developing countries greater food security:
WTO members should redefine how food security is treated in multilateral trade agreements so that policies to achieve food security and the realization of the human right to adequate food are no longer treated as a derivations from but as recognized principal objectives of agricultural trade policy. Food security is presently treated under the WTO as the grounds for exceptions for a very limited range of trade liberalization commitments...Members should preserve and create a range of flexibilities in the Doha Round Negotiations in order to ensure that the future international trade regime operates in lock step with multilateral and national efforts to address food insecurity.
De Schutter's comments are in anticipation of the Eighth WTO Ministerial Conference [materials] to be held December 15–17 in Geneva, Switzerland. As of earlier this month, the provisional agenda [document] for the conference does not list specific topics of discussion.

Last month, De Schutter voiced his support for a reformation of the Mexican constitution [JURIST report] which will recognize the right to food. In 2010, De Schutter urged governments to institute legal reform to help fight hunger [JURIST report] and promote the right to food. UN Secretary-General Ban Ki-moon [official website] in 2007 called for an increased effort to uphold the "fundamental human right" to food [JURIST report] for people around the world who suffer from chronic hunger. The right to adequate food is recognized in Articles 24(2)(c) and 27(3) of the Convention on the Rights of the Child, Article 12(2) of the Convention on the Elimination of All Forms of Discrimination against Women, and Articles 25(f) and 28(1) of the Convention on the Rights of Persons with Disabilities [texts]. Article 25 of the Universal Declaration on Human Rights [text], adopted by the UN in 1948, states that "[e]veryone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food."




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Prosecutors appeal decision to release Khmer Rouge leader
Michael Haggerson on November 18, 2011 1:42 PM ET

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[JURIST] Prosecutors in the UN-backed Extraordinary Chambers in the Courts of Cambodia (ECCC) [official website; JURIST news archive] filed an immediate appeal [text, PDF] on Friday of the court's decision to release [JURIST report] Khmer Rouge leader Ieng Thirith [ECCC profile, PDF] after finding her unfit to stand trial. The judges found, based on the opinions of a geriatrician and four psychiatrists [JURIST report], that Ieng's incapacity to remember her own husband's name, let alone her alleged contribution to the death of up to two million people, would not serve the interests of justice. The prosecutors argue that the decision to release Ieng should be delayed for six months and she should be held in detention during that time and undergo medical treatment for her condition. The prosecutors also argue that the court had no legal basis for its decision to immediately release Ieng and that international jurisprudence dictates that when international criminal proceedings are adjourned due to unfitness of the defendant to stand trial, the norm is for that individual to remain in custody or be released subject to restrictive conditions when there is a even a remote possibility that the individual could regain their mental faculties. The prosecutors point out that the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] did not terminate proceedings against Talic [ICTY case information, PDF; materials] or Djukic [ICTY case information, PDF; materials] until their deaths even though they were afflicted with incurable terminal illnesses. The prosecutors further argue that the International Criminal Court Rules of Procedure and Evidence [text, PDF] mandate that judgments that an individual is unfit to stand trial be reviewed within 120 days unless there are "reasons to do otherwise" and there is no precedent for the individual to be released during this period.

The trial of the other three surviving leaders is set to begin [JURIST report] on Monday, November 21. The prosecution will have two days for opening statements followed by half a day of opening statements for the defense. The first segment of the trial is expected to conclude by December 16 for Christmas recess and will resume after the holiday break on January 9. In September, the ECCC ordered the trials be split into a series of smaller trials [JURIST report]. The ECCC said that the separation of trials will allow the tribunal to deliberate more quickly [press release] in the case [materials] against the elderly defendants. The first trial will focus on the beginning two phases of population movement and allegations of crimes against humanity, including murder, persecution not on religious grounds and forced disappearances associated with the first phases of population movement. Subsequent trials will focus on the third phase of population movement, genocide, persecution based on religious grounds and violation of the Geneva Conventions of 1949 [ICRC backgrounder].




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Sri Lanka ex-army chief sentenced to 3 more years for implicating official in war crimes
Brandon Gatto on November 18, 2011 11:24 AM ET

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[JURIST] A jailed former Sri Lanka army chief was sentenced on Friday to an additional three years in prison for reportedly implicating his country's defense secretary in war crimes at the end of the 26-year Sri Lankan civil war [CFR backgrounder]. In the High Court [official website] ruling, two out of three judges found that the comments made to a newspaper by former officer Sarath Fonseka [BBC profile] had breached Sri Lanka's emergency laws that were put in place during the war. According to prosecutors, Fonseka told the Sunday Leader [media website] newspaper on December 13, 2009, that he was informed that secretary Gotabhaya Rajapaska, the brother of Sri Lankan President Mahinda Rajapaska [BBC profile], ordered not to accommodate surrendering soldiers. Fonseka, however, has long contended that he was misquoted [AFP report], and that such drastic penalties against the freedoms of speech will leave a black mark on the history of the Sri Lankan judiciary.

By the end of the 26-year civil war in 2009, Fonseka had successfully led the Sri Lankan army to victory over the separatist Tamil Tiger rebels, and both he and Mahinda Rajapaksa became popular in the country's political scene. However, shortly after his political defeat in the January 2010 presidential election, Fonseka was arrested and found guilty in August 2010 for engaging in politics while still on active duty [JURIST report]. Even before his hearings first began [JURIST report] in July 2010, Fonseka has maintained throughout the ordeal that his treatment is against the rule of law, and that vast democratic improvements [JURIST report] are a necessity within the Sri Lankan government.




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Ninth Circuit refuses to block release of names on Washington domestic partnership petition
Jaimie Cremeans on November 18, 2011 10:40 AM ET

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[JURIST] The US Court of Appeals for the Ninth Circuit [official website] on Wednesday denied a request [opinion, PDF] to block the release of names on Washington state petitions for Referendum 71 (R-71) opposing domestic partnerships. Last month, the Washington secretary of state began to release the names [JURIST report] after a federal judge lifted an injunction against their release. The release was halted [Seattle Times report] days later when an emergency motion was filed by a group concerned about backlash against signers of the petitions. On Wednesday, the appeals court decided the appeal was "moot due to the (previous) release of R-71 petitions and district court's order identifying the Doe plaintiffs" and that there is question of whether the plaintiff-appellants have "standing to bring this appeal on behalf of R-71 petition signers." Protect Marriage Washington [advocacy website], the group bringing the suit, has filed a notice of appeal with the court.

In 2009 the Supreme Court issued a temporary injunction against release of the names, but in 2010 it decided [JURIST reports] release of the names was not a violation of the First Amendment. Referendum 71 [summary] was passed in 2009 by Washington voters, affirming approval of Senate Bill 5688 [text], to give domestic partnerships the same legal rights as married couples. It was put on the ballot by Protect Marriage Washington in a failed attempt to vote down Senate Bill 5688. Many opposing groups filed for release [AG website] of the names on the petitions, causing Protect Marriage Washington to file the ensuing lawsuits to protect signers' identities.




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Philippines ex-president arrested on fraud, corruption charges
Matthew Pomy on November 18, 2011 9:49 AM ET

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[JURIST] Philippine authorities arrested former president Gloria Macapagal Arroyo [BBC profile; JURIST news archive] on Friday in response to a warrant [text] issued that same day on charges of corruption and election fraud occurring during her time as president. Arroyo was arrested in her hospital room [AP report] where she was being treated for a bone ailment. She was previously unable to seek medical care outside of the Philippines because of travel restrictions in connection with her charges. However, earlier this week the Philippine Supreme Court [official website] issued [JURIST report] a temporary restraining order [text, PDF] allowing her to leave the country despite the accusations. The court ruled 8-5 against government-imposed travel restrictions that started in August. Arroyo argued that she needs to travel abroad for medical treatment, unavailable in the Philippines while government officials argued treatment is available in the Philippines and are concerned this is an attempt to flee the country. After that decision was upheld Friday, the government issued the warrant for her arrest which overrode the court's decision allowing her to travel. Arroyo continues to deny wrongdoing [AP report] and alleges that the charges reflect political persecution by the government.

On Tuesday, Arroyo and her husband attempted to leave the country after posting bond, but the government refused to allow them transit until they received an official copy of the court order. A spokesperson for the government stated it would appeal the ruling. Oral arguments were set for November 22. Arroyo was president of the Philippines from 2001-2010. She left office after the Philippine Department of Justice (PDOJ) [official website] brought allegations of corruption. Arroyo was elected to the House of Representatives last year after the Philippine Supreme Court ruled her eligible to run [JURIST report], despite protests that she had an unfair advantage. In July 2010, current President Benigno Aquino [BBC profile] signed an executive order [JURIST report] to set up a "truth commission" to investigate allegations that the outgoing administration engaged in corruption and rights violations.




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Russia lawmakers approve bill banning 'promotion' of homosexuality
Hillary Stemple on November 18, 2011 9:31 AM ET

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[JURIST] Russian lawmakers in the city of St. Petersburg on Wednesday overwhelmingly approved an initial reading of a bill that would impose fines against people convicted of promoting homosexuality, including gays or lesbians who are open about their sexuality. The legislation, which was supported by the ruling United Russia party [AFP report], would ban gay pride parades, and any activity in public which could influence children and that could be viewed as promoting a gay, lesbian, transgender or LGBT lifestyle. Individuals convicted under the law would be subject to fines between 3,000 and 5,000 rubles ($100-$160 USD) [Moscow Times report], while organizations could be fined up to 50,000 rubles for "promoting" homosexuality. Sponsors of the bill claim it is necessary because homosexual propaganda "threatens" Russia [RIA Novosti report] and that "sexual deviation" negatively impacts Russian children. Valentina Matviyenko, speaker of the upper house of the Russian Parliament [official website, in Russian] and former governor of St. Petersburg, noted his support for the measure and indicated that a similar national ban should be considered. Russian gay rights supporters condemned the bill as an attempt to politicize the issue and bolster political support for the United Russia party in St. Petersburg among the uneducated population. They condemned the bill as being unprofessional, due to the presence of numerous spelling errors, and excessively regressive. According to legal scholars, the Russian Constitution [text] may allow limitations to be placed on the rights of homosexuals due to the constitutional ability to balance the interests of society and limit rights of a social group if they infringe upon the rights of another social group. Before it can be enacted, the legislation must survive two more readings, although approval of the bill is ultimately expected.

Russia has long struggled with the acceptance of homosexuality. In 2008, several Russian gay rights activists were arrested [JURIST report] by police in Moscow for holding events commemorating the 1993 law that put an end to government prosecution for homosexual activity in Russia. It was the third consecutive year Moscow Pride held events around the city to elude officials attempting to enforce a local ban on gay pride parades [JURIST report] that was put in place due to fears of violence. The UN has attempted to pass resolutions aimed at ending sexuality discrimination worldwide, but has faced difficulty passing resolutions on gay rights issues, due to no international consensus on the morality of homosexuality. In June, UN Human Rights Council (UNHRC) [official website] passed the "Human rights, sexual orientation and gender identity" resolution [text, PDF], which is the first resolution to call for an end to sexuality discrimination worldwide [JURIST report] and to recognize it as a "priority" for the UN. Last year, UN Secretary General Ban Ki-moon [official website] called for countries around the world to abolish laws discriminating against gay and lesbian individuals [JURIST report]. Two years ago, the UN passed a gay rights declaration [text, PDF], which the US signed and sponsored [JURIST report]. The declaration, a nonbinding measure that does not have the full force of a resolution, called on states to end criminalization and persecution of homosexuals. This declaration was recalled by the new resolution. Although 85 countries signed the declaration [US Ambassador statement], 57 countries, primarily in Africa and the Middle East, signed an opposing statement. The year before, the UN General Assembly [official website] was divided over the issue of decriminalizing homosexuality [JURIST report] as 66 nations signed a statement calling for decriminalization, and nearly 60 nations signed an opposing statement.




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White House threatens veto of defense spending bill over detainee provisions
Hillary Stemple on November 18, 2011 8:58 AM ET

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[JURIST] The White House released a statement of administration policy [text, PDF] on Thursday praising the work of the Senate Armed Services Committee (SASC) [official website] on the National Defense Authorization Act for 2012 [SB 1867, PDF] but warning that President Barack Obama [official website] could veto the bill if it "challenges or constrains the President's critical authorities to collect intelligence, incapacitate dangerous terrorists, [or] protect the Nation." The White House expressed serious concerns about provisions in the bill governing detainees, which would allow the military to have complete custody and control over terror suspects and grant authority to Attorney General Eric Holder [official website] over whether suspects should be tried in military or civilian courts. The provisions were approved on Wednesday [JURIST report] by the SASC in an unanimous vote after disagreements regarding the provisions had blocked their passage for months [CNN report]. In the statement the White House noted that the Obama administration has "serious legal and policy concerns" about the proposed changes to detainee policies, stating that the provisions would "disrupt the Executive branch's ability to enforce the law and impose unwise and unwarranted restrictions on the U.S. Government's ability to aggressively combat international terrorism." The White House also warned that a section of the bill that would apply military custody requirements to certain individuals in the US "would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets." According to the Obama administration, the detainee provisions of the bill would "rebuild the walls" between intelligence, military and law enforcement professionals making it more difficult to prevent terrorist attacks. The White House also noted the administration's willingness to work with Congress to address the concerns expressed in the statement.

The Armed Services Committee's decision, which still must survive a vote in the full Senate comes on the heels of an American Civil Liberties Union (ACLU) [advocacy website] report [text, PDF] claiming that the US is diminishing its "core values" [JURIST report] with regard to various counterterrorism measures put in place during the 10 years since the 9/11 attacks [JURIST backgrounder]. To support this contention, the report cites to US policies regarding indefinite military detention for terrorism suspects, the use of torture on terrorism suspects and enemy combatants, racial and religious profiling, and domestic surveillance and wiretapping. The report posits that these policies run deeper than what is known by the American people, civil liberties continue to be violated in secret and that future violations are imminent. The ACLU acknowledged that the government has sought to cease certain questionable practices, citing President Barack Obama's directive to close the Guantanamo Bay military prison [JURIST news report], but stated that other questionable practices remain "core elements of [US] national security strategy today."




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