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Legal news from Monday, August 20, 2012




ICC rejects ex-Ivory Coast president's jurisdiction challenge
Max Slater on August 20, 2012 3:17 PM ET

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[JURIST] The International Criminal Court (ICC) [official website; JURIST backgrounder] on Monday dismissed a challenge by former Ivory Coast president and alleged war criminal Laurent Gbagbo [BBC profile] that the court lacks jurisdiction to try him. Gbagbo is being charged with crimes against humanity relating to violence following the 2010 elections in which Gbagbo lost but refused to cede power. Specifically, the ICC is charging Gbagbo [materials] with murder, rape, persecution and "other inhumane acts" related to post-election violence. Gbagbo contended [AP report] that the ICC does not have jurisdiction to adjudicate his case because he was mistreated while being detained in Ivory Coast for several months. The ICC dismissed Gbagbo's jurisdictional challenge, holding that it has the authority to hear his case. Gbagbo was extradited to the ICC in November.

Gbagbo has been the subject of legal controversy both in the Ivory Coast and abroad. Two weeks ago Ivory Coast's commission of inquiry into the country's 2010 post-election violence [JURIST news archive] submitted a report [JURIST report] to President Alassane Ouattara [BBC profile] revealing that hundreds of fighters on both sides of the hostilities committed war crimes and human rights violations. Earlier in August the ICC delayed a hearing [JURIST report] against Gbagbo until he is physically fit to stand trial. In July Ivory Coast's justice ministry announced that it would charge two allies [JURIST report] of Gbagbo with genocide for their roles in the 2010 post-election violence.




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Gay rights activists sue Russia authorities over 2014 Winter Olympics registration
Dan Taglioli on August 20, 2012 2:51 PM ET

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[JURIST] Lesbian, gay, bisexual and transgender (LGBT) activists filed a lawsuit against Russian authorities Monday in the European Court of Human Rights (ECHR) [official website]. The founders of Pride House in Sochi filed the lawsuit seeking €200,000 [Interfax report] over the Russian Justice Ministry's refusal to register Pride House for the 2014 Sochi Winter Olympic Games [official website]. Justice Svetlana Mordovina of the Krasnodar Pervomaisky Court upheld the ministry decision [Gaystarnews report] in March, labeling Pride House activities as "propaganda of non-traditional sexual orientation" that can undermine state security and provoke social-religious hatred. Pride House was founded at the 2010 Winter Olympics in Vancouver and then reestablished [advocacy website] at the 2012 Olympic Games in London to celebrate "sport for all" while bringing together all members and friends of the worldwide LGBT community to commemorate the Olympics and discuss relevant LGBT and sports-related topics. Regardless of the ECHR lawsuit Russia's best-known gay rights campaigner Nikolay Alexeyev has announced that advocates will attempt to open Pride House in Sochi through alternative agreements that would bypass registration with the Russian Justice Ministry. Houses are usually set by host countries' national Olympic committees independent of the International Olympic Committee [official website].

Russia has long struggled with the acceptance of homosexuality. Last week Alexeyev lost a court challenge [JURIST report] to Moscow's 100-year municipal ban on gay pride marches. He intends to appeal the decision to the ECHR, has already ordered Russia to pay Alexeyev [JURIST report] an award of 12,000 euros for non-pecuniary damages plus 17,510 euros for costs and attorneys fees (USD $41,090 total) for rejecting his license application for a gay pride gathering. In March St. Petersburg announced that the city's governor had signed into law a bill that would impose fines against people convicted of promoting homosexuality, including gays or lesbians who are open about their sexuality—individuals convicted under the law would be subject to fines between 3,000 and 5,000 rubles (US $100-160) [Moscow Times report], while organizations could be fined up to 50,000 rubles for "promoting" homosexuality. In December Senior Lecturer of Sociology at the University of Surrey Paul Johnson [university profile] wrote that the latest ban by Russian authorities on the promotion of homosexuality to minors is only the most recent violation of the ECHR ruling [JURIST comment] on the subject.




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Arizona high court upholds English language law
Max Slater on August 20, 2012 1:31 PM ET

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[JURIST] The Arizona Supreme Court ruled [opinion, PDF] on Friday that a state law [Arizona Code section 38-201(c) [text] requiring all public officials to be proficient in English is constitutional. The defendant in the case, Alejandrina Cabrera, was a city council candidate in the largely Spanish-speaking Arizona town of San Luis. Cabrera argued [AP report] that her English was good enough for San Luis because of the prevalence of Spanish speakers there, and that Section 38-201(c) may have been racially motivated. In rejecting Cabrera's arguments, the Arizona Supreme Court held that the English language law advanced the legitimate state interest of ensuring that public officials could perform their basic duties and communicate with constituents who only speak English:
[Arizona's English language law] manifests a legitimate concern that those who hold elective office be minimally proficient in English in order to conduct the duties of their office without the aid of an interpreter. Such a requirement helps ensure that the public officer will in fact be able to understand and perform the functions of the office, including communications with English-speaking constituents and the public.
The court based its ruling on a provision of the Arizona constitution [text] that codifies English as the official language of the state.

English language laws [JURIST news archive] have been a controversial legal issue recently both in the US and abroad. In April JURIST guest columnist Iryna Dasevich emphasized [JURIST op-ed] the need for interpreters in the US criminal justice system. In July 2011 an Indian couple challenged a UK immigration law [JURIST report] that includes and English proficiency requirement. In November 2010 the Supreme Court of Georgia [official website] ruled [JURIST report] that defendants with limited English skills have the right to an interpreter. In October 2010 lawmakers in Quebec approved a controversial bill [JURIST report] modifying English speakers' access to English public schools in the province. In August 2010 the Canadian Bar Association [official website] passed a resolution [JURIST report] opposing a bill requiring Canadian Supreme Court Justices to speak both French and English.




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UN rights experts concerned about Australia offshore detention
Rebecca DiLeonardo on August 20, 2012 1:24 PM ET

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[JURIST] Spokespersons for the UN Office of the High Commissioner on Human Rights (OHCHR) and the UN High Commissioner of Refugees (UNHCR) [official websites on Monday expressed concern [press release; statement] about a recently passed law in Australia that will reopen offshore detention centers used to process migrants and asylum-seekers who arrive in the country by sea. A spokesperson for the High Commissioner on Human Rights Navi Pillay said that Pillay was concerned that the reopening of the offshore facilities may lead to indefinite detention and human rights violations. The Australian Parliament [official website] passed the law after a panel of experts considered possible reforms to the country's migrant policies. Both UN commissioners have called on Australian authorities to rethink the amendment to the migrant policy and to consider continuing to process migrants in the country.

Laws and policies governing the treatment of migrants continue to raise international human rights concerns. Human Rights Watch (HRW) reported last month that migrants residing in Greece face a rising culture of discrimination and violence [JURIST report]. In June, Amnesty International (AI) said the Cyprus government's practice of detaining all illegal migrants seeking asylum in the island nation violates international law [JURIST report]. In January, the Israeli Knesset passed a bill that imposes harsher penalties on illegal migrants [JURIST report] in Israel, as well as on Israelis who help illegal migrants. AI criticized the bill as a violation of human rights. Last March, AI released a report documenting discrimination and human rights violations against Roma migrants [JURIST report] in Slovenia and urging the Slovenian government to protect Roma communities. In September 2010, the Global Migration Group (GMG) adopted a statement urging all governments to respect the human rights of migrants [JURIST report], who are more likely to face various forms of abuse as they lack proper legal status. The GMG stressed that every person, regardless of migration status, should enjoy the fundamental rights to life, liberty and all fundamental human rights.




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Federal judge rejects Facebook class action settlement agreement
Dan Taglioli on August 20, 2012 12:51 PM ET

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[JURIST] A judge for the US District Court for the Northern District of California [official website] on Friday rejected a settlement [order, PDF] proposed by Facebook [website; JURIST news archive] in a class action lawsuit over the social networking company's "Sponsored Stories" program. The lawsuit accuses Facebook [Bloomberg report] of appropriating the names, photographs and identities of users through the Sponsored Stories program to advertise products to users, all without their explicit permission. Judge Richard Seeborg refused to grant preliminary approval of the settlement, which provided for changes to Facebook's Statement of Rights and Responsibilities and for $10 million in cy pres payments to be shared among advocacy groups for children, consumers and electronic privacy, but not the Facebook users themselves:
California Civil Code §3344 ... under which plaintiffs' claims are brought, provides for statutory damages of $750 for any violation. It very well may be, as Facebook argues, that plaintiffs' chances of obtaining a judgment awarding such statutory damages to class members are remote, but their potential availability must be considered in evaluating the fairness of any settlement. Merely pointing to the infeasibility of dividing up the agreed-to $10 million recovery, or the relatively small per-use revenue Facebook derived, is insufficient, standing alone, to justify resort to purely cy pres payments.
Seeborg also expressed concern over the settlement provision that allows payments of up to $10 million in attorney's fees, again excluding the users who make up the class of injured parties. Praising the ruling was Consumer Watchdog [advocacy website; press release], a consumer advocacy non-profit that had sent a missive [letter; PDF] to Seeborg opposing the agreement "on the grounds that the proposed settlement is not fair, adequate or reasonable and provides no direct or indirect benefit to class members." Seeborg's order allows for the parties to modify the settlement for fresh consideration or to resubmit the rejected settlement accompanied by additional legal arguments in its favor.

The ubiquitous social networking giant faces legal challenges around the world. Last week German data privacy authorities reopened an investigation into Facebook facial recognition software that automatically recognizes facial features in pictures and "tags" users when others upload photos of them. Hamburg Commissioner for Data Protection and Freedom of Information Johannes Caspar [official website, in German] claims that Facebook is illegally compiling a huge database [JURIST report] of members' photos without their consent, and the archive should be destroyed because European data protection laws require explicit consent of users for a company to employ such analytic software to compile a photographic database of human faces. Mirroring Caspar's position, Patricia Rogosch, a research assistant for the EU Project CONSENT Institute for Information, Telecommunication and Media Law, wrote in August 2011 that the Facebook facial recognition feature violates European data protection laws [JURIST comment] because the software was introduced without notifying users and it requires users to opt out instead of opting in. In July 2010 Caspar initiated legal proceedings [JURIST report] against Facebook for accessing and saving non-users' personal information, stated the social networking site could be fined tens of thousands of euros for violating Germany's strict privacy laws. Caspar was alerted that non-users had been contacted by Facebook because their e-mail addresses were listed in Facebook users' e-mail contacts.




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Japan to take legal dispute with South Korea over islands to ICJ
Max Slater on August 20, 2012 12:37 PM ET

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[JURIST] The government of Japan announced [press release] on Saturday that it will file a lawsuit with the International Court of Justice (ICJ) [official website] in The Hague over an ongoing territorial dispute with South Korea concerning a group of islands. The disputed islands, known as Takeshima in Japan and Dokdo in South Korea, are believed to contain valuable natural gas deposits. In order for an ICJ ruling to be enforceable, both parties must agree to be bound by the court's ruling. In the press release, Japanese Foreign Minister Koichiro Gemba [official profile, in Japanese] called on the government of South Korea to allow the ICJ to adjudicate the dispute:
[I]n the coming days,[Japan] will propose, regarding dispute over Takeshima, to [South Korea's] government to institute proceedings before the International Court of Justice...by a special agreement, and to request Conciliation based on the Exchange of Notes Concerning Settlement of Dispute between Japan and [South Korea]. As [South Korea's] government advocates "Global Korea", if it believes it has justifiable territorial rights over Takeshima, it should accept the Japanese proposal. I would like to strongly request that to [South Korea's] government.
South Korea has not yet indicated whether or not it will agree to be bound by the ICJ.

The hostility between Japan and South Korea over the islands escalated last week when South Korea President Lee Myung Bak [official website, in Korean] made a surprise visit to the islands [Al Jazeera report]. In March 2005 Japanese Prime Minister Koizumi Junichiro [official profile] mentioned [JURIST report] that the ICJ could be a good forum for resolving the dispute over the islands. Earlier in March 2005 a Japanese prefecture approved a symbolic resolution [JURIST report] calling for the creation of "Takeshima Day" to celebrate Japan's alleged sovereignty over the islands.




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Pakistan president: blasphemy laws must not be misused
Rebecca DiLeonardo on August 20, 2012 12:01 PM ET

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[JURIST] Pakistani President Asif Ali Zardari [official website] said Monday that the country's blasphemy laws would not be misused to persecute religious beliefs. Zardari's comments came after an 11-year-old Christian was arrested last week for allegedly desecrating pages of a religious text. Police said after the girl's arrest that she may have Down syndrome. Zardari has ordered an investigation [UPI report] into the arrest. A human rights official in the country said that the situation should have been investigated before the girl was arrested, and that the arrest was a clear misuse of blasphemy laws. A spokesperson for Zardari said that while the president does not condone blasphemy, he is concerned about reports that the laws are being misused. Blasphemy laws in Pakistan carry penalties ranging from a fine to capital punishment.

An ongoing source of international concern, blasphemy laws [JURIST news archive] are currently in effect in several countries around the world. The US Department of State (DOS) last month released [JURIST report] its annual International Religious Freedom Report, documenting threats to religious freedom throughout the world. The report documents current international threats to religious freedom—particularly laws that punish religious traditions and blasphemy laws that are often used to punish religious tolerance. Earlier that month an Indonesian court sentenced a Shia cleric to two years in prison on blasphemy charges [JURIST report], finding that his teachings deviated from mainstream Islam resulting in "public anxiety" over Muluk's pronouncements. In March 2011 UN High Commissioner for Human Rights Navi Pillay expressed her opposition to Pakistan's controversial blasphemy laws [JURIST report], urging their repeal after the assassination of Pakistani Minister for Minority Affairs Shahbaz Bhatti, a member of Pakistan's Christian minority and outspoken critic of Pakistan's blasphemy laws. In November 2010 Saroop Ijaz, an advocate before the Lahore High Court in Pakistan, wrote that Pakistan's blasphemy laws should be repealed [JURIST op-ed] if the country is to function as a democracy and address the threat of extremism both at home and abroad.




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Federal appeals court upholds EPA plan to add more ethanol to gasoline
Max Slater on August 20, 2012 11:19 AM ET

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[JURIST] The US Court of Appeals for the District of Columbia Circuit [official website] ruled [opinion, PDF] on Friday that the Environmental Protection Agency (EPA) [official website] acted lawfully when it approved a plan to increase the amount of ethanol in gasoline. The EPA approved the introduction of a fuel blend known as E15 which consists of 15 percent ethanol, up from the usual 10 percent. The petitioners in the case—a group of car manufacturers, food makers and oil refiners—argued [Reuters report] that the EPA's approval of E15 would harm them by increasing the price of corn and subjecting car makers to increased liability over potential engine malfunctions due to ethanol. In a 2-1 decision, the DC Circuit rejected the petitioners' argument, holding that there was no causal relationship between the EPA's decision to approve E15 and the alleged cost the petitioners would incur:
Petitioners' attempt to draw a causal link between the E15 waivers they challenge and the costs they would incur by introducing E15 ultimately rings hollow. If anything is "forcing" these entities to incur the costs of introducing a new fuel, it is the obligations set by the [Renewable Fuel Standard], competitive pressures, or some combination thereof. EPA's partial waivers simply provide a new choice of fuel that manufacturers may produce.
One judge dissented, arguing that the EPA acted unlawfully in approving the E15 fuel blend.

The DC Circuit's decision marks a rare victory for the EPA, which has faced several legal defeats in the past year. Last week the US Court of Appeals for the Fifth Circuit [official website] ruled [JURIST report] that the EPA overstepped its bounds when it rejected a Texas plan to issue air permits. Three weeks ago the US District Court for the District of Columbia [official website] ruled [JURIST report] that the EPA violated several environmental statutes when it issued regulations on coal mining in the Appalachia region. In October a federal judge similarly ruled [JURIST report] against the agency regarding its process for granting permits used by coal companies for mountaintop removal mining in Appalachia. There, the court ordered that the EPA's 2009 guidelines be set aside so that all pre-2009 guidelines could be restored. In an out-of-court defeat last September the US House of Representatives [official website] passed [JURIST report] the Transparency in Regulatory Analysis of Impacts on the Nation Act 2011 [text, PDF], a bill that essentially blocks a number of proposed EPA regulations aimed at reducing emissions.




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Myanmar eliminates direct press censorship
Rebecca DiLeonardo on August 20, 2012 10:57 AM ET

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[JURIST] The government of Myanmar announced Monday that it has abolished the country's strict press censorship practices. While laws governing the content of published material will remain, the government abolished its practice of reviewing material before publication [Al Jazeera report]. A review board may still review publications after they are published and remove any illegal content. The new practice overturns a requirement of the last 50 years that all publications be submitted to a review board before publication. Critics have said that laws limiting the content of publications in Myanmar are vague and the government could still use them to prosecute political opponents. The relaxed censorship policy is the latest measure the new government has made an attempt to improve its international reputation following a transfer of power from a military regime to a civil system in 2011 after holding its first elections in 20 years.

While Myanmar continues to take steps forward in its reformation efforts, it has recently faced struggles with regards to sectarian violence within the country. President Thein Sein [BBC profile] last week announced the creation of a 27-member commission tasked with investigating the cause of the sectarian violence [JURIST report] between Rohingya Muslims and Rakhine Buddhists. Earlier this month, Human Rights Watch (HRW) accused government forces [JURIST report] of human rights violations following the clashes. Last month spokesperson for the UN High Commissioner for Refugees (UNHCR) Melissa Fleming reported that ten UN staff and aid workers had been arrested [JURIST report] in the northwestern Rakhine state and three of them are facing unknown criminal charges. In June HRW had urged [JURIST report] the Chinese government to provide basic food and shelter needs to refugees from Myanmar after finding refugee abuse. Earlier that month HRW also called on [JURIST report] Bangladesh to open its borders to Myanmar refugees a day after it demanded Myanmar ensure the safety of communities in the Arakan State subject to the violence between Arakan Buddhists and ethnic Rohingya Muslims.




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UN expert says US government must allow investigation of drone strikes
Rebecca DiLeonardo on August 20, 2012 10:24 AM ET

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[JURIST] UN Special Rapporteur on human rights and counterterrorism Ben Emmerson told reporters on Sunday that the US government must allow an independent investigation of the legality of its drone strike policy. The US has received heavy criticism recently for its use of drone strikes to attack targets in the War on Terror [JURIST news archive]. Emmerson criticized the US for its policy of defending the legality of drone strikes in general while declining to officially confirm that it is responsible for recent attacks. He said the US must expose its program to international scrutiny [Independent report] in order evaluate the legality of the strikes, which some have argued violate the sovereignty of foreign states and are potential war crimes. Emmerson said it was impossible to evaluate the legality of the attacks until the US acknowledged their existence and allowed an investigation into their use.

International concern about the US use of drone strikes to attack foreign targets has risen in the past year. Pakistan Ambassador to the US Sherry Rehman last month called on the US Central Intelligence Agency (CIA) to stop using drone strikes [JURIST report], saying that she believes the use of unilateral drone attacks violates international human rights laws and standards. Also in July, US lawmakers called on Congress and the Department of Homeland Security to address safety and security concerns [JURIST report] with the use of drone attacks domestically and to determine how to regulate their use. Earlier that month, rights groups filed a lawsuit [JURIST report] suing the US government for killing three US citizens using drone strikes. The UN last month also criticized [JURIST report] the US government's use of drone attacks, saying some attacks could constitute war crimes. A few days earlier, a UN official said the US government failed to answer [JURIST report] any of his questions regarding its use of drone attacks and noted that in the past the US has failed to provide a justification for the legality of these attacks under international law.




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Ukraine opposition suing president for crimes against Ukrainian people
Max Slater on August 20, 2012 10:21 AM ET

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[JURIST] A Ukrainian opposition group filed a lawsuit on Monday that seeks to charge President Viktor Yanukovych [official website, in Ukrainian; JURIST news archive] with crimes against the Ukrainian people. The lawsuit was filed by Batkivshchyna [party website, in Ukrainian], the political party of ex-Ukrainian prime minister Yulia Tymoshenko [personal website; JURIST news archive]. The lawsuit specifically alleges [RFE/RL report] that Yanukovych has illegally passed a law making Russian the official language of Ukraine [JURIST report], unlawfully appointed members of his cabinet and has pressured judges of the Ukraine Constitutional Court [official website, in Ukrainian]. Yanukovych has not yet responded to the lawsuit. It is not clear when Ukraine's Supreme Administrative Court will rule on the lawsuit.

Ukraine [JURIST news archive] has been a hotbed of political controversy recently. On Saturday a court in Ukraine sentenced Yuriy Lutshenko, a former cabinet member of Tymoshenko, to two years in prison for authorizing an illegal extension of surveillance [JURIST report]. Last week Ukraine's Supreme Administrative Court declined to overturn a lower court decision prohibiting Lutsenko and Tymoshenko from running in the upcoming parliamentary elections [JURIST report], confirming the August 11 decision of the Kyiv Administrative Appeal Court upholding the Central Electoral Commission's resolution No. 216 of August 8 in which it refused to register Tymoshenko and Lutsenko as parliamentary candidates. Last month a Ukrainian appeals court postponed [JURIST report] the appeal hearing challenging Tymoshenko's corruption conviction and seven-year sentence, marking the third postponement in that case. Her tax evasion trial began [JURIST report] in April but has also been postponed several times. In May the European Court of Human Rights (ECHR) [official website] ended an investigation [JURIST report] into the health care conditions of Tymoshenko, finding that the Ukrainian government provided her with adequate care. She previously alleged that prison guards were beating her and she refused to be treated [JURIST report] by prison doctors for back problems, believing they were under the direction of Yanukovych.




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