JURIST - Paper Chase: Saturday, September 8, 2012

[JURIST] The UN Office for the Coordination of Humanitarian Affairs (OCHA) [official website] issued a statement on Friday calling for increased aid for the 2.5 million Syrians affected by the ongoing civil uprising against President Bashar al-Assad [JURIST news archive]. The aid request for the Syria Humanitarian Response Plan was raised from US$180 million to US$347 million [UN News Centre report] after the number of Syrians in need doubled since July. Also on Friday the UN High Commissioner for Refugees (UNHCR) [official website] announced a significant increase in the number of internally displaced persons (IDPs) in Syria, requesting US$41.7 million [UN News Centre report] of the increased funding to go to support IDPs. The requests for increased international humanitarian aid came on the same day Syrian rebels claimed they freed 350 prisoners [NYT report] from a Syrian security building in the city of Aleppo, which for months has been at the center of the armed conflict between rebels and government troops. Last month Amnesty International (AI) [advocacy website] published a report holding the Syrian government responsible for human rights violations in Aleppo [JURIST report], including allegations that Syrian security and military forces routinely used live fire against peaceful demonstrations in and around the city, killing and injuring protesters and bystanders. The Syria Humanitarian Response was launched at the Syria Humanitarian Forum in Geneva and focuses on the priority areas of health, food, livelihoods, infrastructure rehabilitation, community services, education and shelter.

Last month UN Secretary General Ban Ki Moon [official website] requested an immediate investigation [JURIST report] into civilian deaths in Syria. Earlier in August the UN Supervision Mission in Syria (UNSMIS) [official website] ceased its work [JURIST report] in the country, with UN Assistant Secretary-General for Peacekeeping Operations Edmund Mulet stating that the mission's work had to be stopped because the two conditions required by the UN Security Council [official website] to renew the UNSMIS mandate—the cessation of the use of heavy weapons and the reduction in violence from all sides—were not met. Also in August UNSMIS chief Lieutenant General Babacar Gayee expressed concern [JURIST report] about the growing number of civilian casualties in violent clashes between government forces and armed opposition groups. In June a UN commission stated that Syrian forces may have been responsible [JURIST report] for the killing of more than 100 civilians in Al-Houla in May. President al-Assad denied [JURIST report] the allegations stating that "not even monsters" would carry out the attacks.

[JURIST] The US Court of Appeals for the Seventh Circuit [official website] on Friday ruled [opinion, PDF] that disabled employees are to be appointed within their company to vacant positions that they are qualified to hold. The case was brought in 2009 by the Equal Employment Opportunity Commission (EEOC) [official website] against United Airlines, now United Continental Holdings (UAL) [corporate website]. The ruling acts on a recommendation [opinion, PDF] by the same three-judge panel in March that the Seventh Circuit overturn its own decision [opinion, txt] in a case from 2000 in which the court held that the Americans with Disabilities Act [text] does not require employers to reassign disabled employees to a vacant position for which they are qualified:

The present case offers us the opportunity to correct this continuing error in our jurisprudence ... We reverse and hold that the ADA does indeed mandate that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to that employer ... The Supreme Court first noted that "[t]he simple fact that an accommodation would provide a 'preference' — in the sense that it would permit the worker with a disability to violate a rule that others must obey — cannot, in and of itself, automatically show that the accommodation is not 'reasonable.'"

The earlier decision did not have to be overturned by the full court because Circuit Rule 40(e) [materials] permits a panel of the court to overrule established circuit precedent if the panel's proposed opinion is circulated among the active members of the court and a majority of those circuit judges vote not to rehear the case en banc.

This has been a difficult week for the UAL legal team. On Tuesday federal judge ruled [JURIST report] that UAL and others must stand trial to defend against a claim by World Trade Center Properties (WTCP), the owners of the World Trade Center towers, that the negligence of the airlines allowed the hijackers to board the planes that eventually destroyed the towers on 9/11 [JURIST backgrounder].

[JURIST] New York Governor Andrew Cuomo [official website; press release] on Friday signed into law a bill [program bill no. 44, PDF] that amends the state's penal code to prohibit the access and viewing of child pornography on the Internet. The bill was passed in response to the state Court of Appeals [official website] decision in People v. Kent [opinion, PDF], which held that under existing New York law an individual who views child pornography online does not legally "possess" child pornography. The legislation closes that gap in the law by amending provisions of § 263 of the New York state penal code to make the intentional online viewing of child pornography a felony. In a statement in support [memorandum, PDF] of the bill Cuomo declared that the legislation will strengthen New York's laws against child pornography:

The State has a compelling interest in safeguarding the physical and psychological well-being of minors ... The Court [in Kent] specifically invited the State to amend the Penal Law to criminalize accessing child pornography with the intent to view it on the internet. This bill would address this glaring loophole.

Kent was decided in May of this year. The bill's provisions are slated to take effect immediately.

Child pornography has been a hot-button legal issue in recent years. In March 2010 the US Court of Appeals for the Third Circuit [official website] ruled [JURIST report] that a Pennsylvania prosecutor cannot file child pornography charges against a teenage girl whose topless photo was found on a number of her schoolmates' cell phones. The three girls implicated in the case refused to attend a class on sexual violence and gender identity and sought a temporary injunction prohibiting prosecution, which the US District Court for the Middle District of Pennsylvania [official website] issued [JURIST report] in March of 2009. In August 2009 the Third Circuit upheld [JURIST report] a 20-year prison sentence and a 10-year Internet ban imposed on a man convicted of receiving child pornography.

[JURIST] Montana's Lewis and Clark County District Court [official website] ruled [opinion, PDF] Thursday that the state's lethal injection method [technical manual, PDF] violates the provision of the Montana constitution [text, PDF] that forbids cruel and unusual punishment. The lawsuit was filed by the American Civil Liberties Union of Montana [advocacy website] on behalf of two death row inmates. Judge Jeffrey Sherlock held that Montana's execution procedure, which involves injections of three different drugs, is cruel and unusual under US Supreme Court [official website] precedent. Noting that the Montana constitution's "human dignity" clause requires the court to give heightened scrutiny to a claim of cruel and unusual punishment, Sherlock ruled that because the three-drug method used by Montana's Department of Corrections differed from the state's statutory protocol requiring a two-drug lethal injection method, mistakes in the execution process could result:

[T]he fact that the statutory protocol is different from the protocol adopted by the Department of Corrections increases the likelihood of confusion and error in the execution. [This] create[s] a substantial risk of serious harm violative of the Plaintiffs' right to be protected from cruel and unusual punishment.

Sherlock also faulted a state practice [Reuters report] that allows a prison warden with no medical training or execution experience to determine whether a prisoner is unconscious before a fatal drug is administered. It is unclear if the state of Montana plans to appeal the ruling.

The death penalty [JURIST news archive] continues to be a controversial legal and moral issue around the world. Two weeks ago a UN human rights expert condemned Iraq [JURIST report] for allegedly using its death penalty in an arbitrary manner that deprived people of due process of law. Earlier in August UN High Commissioner for Human Rights Navi Pillay [official profile] urged the Gambia to enact a moratorium on the death penalty [JURIST report]. In July Singapore announced it planned to relax mandatory death sentences in certain cases [JURIST report]. Just one week before UN Secretary-General Ban Ki-Moon [official profile] called for an end to capital punishment [JURIST report]. In April an initiative in California dealing with overhauling death penalty laws in the state [JURIST report] made it on to the ballot for a November vote.