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Legal news from Tuesday, May 8, 2012




China court agrees to hear dissident artist's case
Sung Un Kim on May 8, 2012 4:23 PM ET

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[JURIST] A Chinese court agreed on Monday to hear the case brought by dissident artist Ai Weiwei [BBC profile]. Ai challenged the government's imposition of 15 million yuan (USD $2.4 million) tax evasion penalty on Fake Cultural Development Ltd. which helps him to produce and market his works. He was accused and charged with tax evasion in November. Ai claims that by imposing such penalty, the government violated the tax law, and he urges the court to overturn the tax bureau's rejection of his appeal against the penalty. Monday's ruling is surprising [Reuters report] because Chinese courts have been denying, or rarely accepting, claims brought by dissidents and their relatives. However, the court's acceptance does not automatically mean that Ai will win in his case against the government.

China has faced continued criticized for detaining political dissidents. Monday's ruling comes only six days after Chen Guangcheng [BBC profile; JURIST news achive], a blind Chinese legal activist, sought safety [JURIST report] from local officials in the US Embassy in Beijing. He was wanted for exposing forced abortions and other human rights violations but escaped [JURIST report] to US protection to avoid 20 months of house arrest. He was placed under house arrest in 2010 after four years in prison [JURIST report]. In April, Ni Yulan, a Chinese housing activist and lawyer, was sentenced [JURIST report] to two years and eight months for fraud and inciting a disturbance in Beijing.




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South Africa court orders probe into Zimbabwe rights violations
Sung Un Kim on May 8, 2012 3:08 PM ET

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[JURIST] A South African court on Tuesday ordered an investigation into allegations of human rights violations committed under Zimbabwean President Robert Mugabe [BBC profile; JURIST news archive]. The allegations include torture and other crimes committed in Zimbabwe prior to the 2008 elections, and the investigation will address complaints [BBC report] brought by various human rights organizations. Judge Hans Fabricius held that South Africa is obligated under international law to conduct the investigation because it is a signatory of the 1998 Rome Statute [text, PDF] since 2002. Additional rationale for the order was the collapse of Zimbabwe's rule of law, hindering it from prosecuting the accused. However, there is concern that the order will have detrimental effects on the country's courts due possible flood of litigation. Additionally, investigations of such a large scale can be very expensive and time consuming. The order may also complicate South Africa's role as the main mediator in Zimbabwe's political crises.

This order derives from the legal action commenced [JURIST report] in March by various human rights groups urging South African courts to prosecute those responsible for crimes against humanity. Zimbabwe has been criticized in the past for such violations including torture and forced labor of civilian workers in illegal mining camps [JURIST report].




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UN official: more needs to be done to protect indigenous rights
Max Slater on May 8, 2012 11:22 AM ET

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[JURIST] UN Deputy Secretary-General Asha-Rose Migiro [official profile] said Monday that five years after the passage of the United Nations Declaration of the Rights of Indigenous Peoples [text, PDF], the international community needs to do more to ensure that the rights of indigenous peoples are protected [statement]. In her remarks to the UN Permanent Forum on Indigenous Issues [official website], Migiro stressed both the need for indigenous people to be involved in economic development and the need for the international community to make sure that indigenous peoples' basic needs are met:
We agree that there can be no development for indigenous peoples without the involvement of indigenous peoples in every step, and only with their free, prior and informed consent. These are fundamental principles enshrined in the UN Declaration on the Rights of Indigenous Peoples. Yet we do not have to search hard to find indigenous peoples facing discrimination, persecution, displacement-even extinction. There are indigenous communities that lack clean drinking water, whose children go hungry, whose women suffer gross abuses and never see the perpetrators brought to justice. A great deal remains to be done to see the objectives of the UN Declaration become a reality.
In June the UN is hosting a conference on sustainable development in Rio De Janeiro. In her remarks, Migiro emphasized the need for indigenous peoples to have a voice in that conference.

Indigenous rights have been a subject of controversy recently. Last month JURIST guest columnist Elena Landriscina argued [JURIST op-ed] that the US needs to honor the human rights of Chagos Islanders who were displaced from their homeland in the Indian Ocean when the Diego Garcia military base was built. Earlier in April the UN Special Rapporteur on Rights of Indigenous Peoples James Anaya [official profile] investigated the rights of Native Americans in the US [JURIST report]. In March UN High Commissioner for Human Rights Navi Pillay [official profile] called on the government of Guatemala to protect the rights of indigenous people [JURIST report]. In February Anaya called on Panama's government to end clashes with indigenous peoples [JURIST report].




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Rwanda genocide tribunal reduces sentence, affirms two others
Jaclyn Belczyk on May 8, 2012 10:46 AM ET

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[JURIST] The International Criminal Tribunal for Rwanda (ICTR) [official website] on Tuesday reduced the sentence [judgment, PDF; press release] of Aloys Ntabakuze [ICTR materials], a former Rwandan army officer convicted of genocide and related crimes, and affirmed the sentences of two others. Ntabakuze's sentence was reduced from life in prison to 35 years after the court heard his appeal [JURIST report] last fall. He was convicted [JURIST report] in 2008 of genocide, complicity in genocide and crimes against humanity, but he sought to overturn those convictions for lack of evidence. The appeals chamber also affirmed a life sentence [judgment, PDF] for Lt. Idelphonse Hategekimana [case materials] and a 30-year sentence [judgment, PDF] for Gaspard Kanyarugika [case materials]. Hategekimana was convicted [JURIST report] in 2010 on charges of genocide and crimes against humanity. Kanyarugika was convicted on similar charges [JURIST report]. The judge ordered that Kanyarugika be given credit for time served since his arrest in 2004.

The UN-backed ICTR continues its work to prosecute those most responsible for the 1994 Rwandan genocide [BBC backgrounder; JURIST news archive], but it has now begun transferring certain cases to Rwandan national courts. Last month, the court confirmed and proceeded with the transfer [JURIST report] of former Rwandan pastor Jean-Bosco Uwinkindi [case materials], making him the first ICTR genocide suspect to be transferred to a national court. Uwinkindi was charged in 2001 with genocide and crimes against humanity. In December, the ICTR upheld the decision to transfer [JURIST report] the case to a Rwandan court. The ICTR initially ordered the transfer [JURIST report] in June under Rule 11 bis, which authorizes the transfer of cases to appropriate national jurisdictions. Uwinkindi pleaded not guilty [JURIST report] in 2010. His case is the first of three that have been considered for transfer to Rwanda. The other two are against Fulgence Kayishema [case materials; JURIST report], a former police inspector, and Charles Sikubwabo [case materials], former Bourgmestre of Gishyita, Kibuye Prefecture.




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Morocco judges sign judicial independence petition
Max Slater on May 8, 2012 10:45 AM ET

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[JURIST] A group of Moroccan judges signed a petition [AP report] on Monday that urges judicial independence from Morocco's monarchy and parliament. The petition, circulated by the 1,800 member Morocco judges' club, particularly emphasizes the need for prosecutors to be able to operate without influence by the executive branch. Although Article 82 of the Moroccan constitution [text, PDF, in French] calls for the judiciary to remain independent from the legislative and executive branches, there is fear in Morocco that the executive branch is exerting too much influence over Moroccan judges. Yassine Mkhelli, the president of the Morocco judges' club, declared that the club would go on strike if their demands for judicial independence were not met.

In July voters in Morocco overwhelmingly approved a revised constitution [JURIST report] that curbed the monarchy's powers. The reformed constitution guarantees more rights for women and gives more powers to the prime minister and the legislative branch. Less than two weeks after voters approved the revised constitution, the Moroccan Human Rights Association (AMDH) [advocacy website, in Arabic] called for a judicial investigation [JURIST report] into the new constitution's legitimacy, saying that government authorities influenced the vote. Also in July law professor and JURIST guest columnist Moshe Gershovich opined [JURIST comment] that while Morocco's new constitution gives the monarchy too much power, it provides a model of peaceful democratic transition for other countries in the region.




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