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Legal news from Thursday, October 18, 2012




UN rights experts urge states to repeal criminal adultery laws
Brandon Gatto on October 18, 2012 3:41 PM ET

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[JURIST] The UN Working Group on discrimination against women [official website] on Thursday urged governments around the world to repeal laws that criminalize adultery [statement] and give rise to severe penalties which include flogging, death by stoning and hanging. While the working group conceded that "adultery may constitute a valid ground for bringing a civil proceeding" in some cultures and traditions, the assembly of individual experts wholly declared [press release] that such an offense should not be deemed criminal. Wrote the group:
Adultery laws have usually been drafted and almost always implemented in a manner prejudicial to women. Provisions in penal codes often do not treat women and men equally and establish harsher sanctions for women, and in some countries, rules of evidence value women’s testimony as half that of a man's
Moreover, the group asserted that maintaining adultery as a criminal offense exposes women to "extreme vulnerabilities" and violates their inherent rights under the International Covenant on Civil and Political Rights [text], which was adopted by the UN General Assembly [official website] in 1976. Specifically, wrote the group, such adultery laws infringe upon women's' Article 17 rights to "dignity, privacy, and equality, given the continuing discrimination against them."

Discrimination and violence against women is a global issue. In June Human Rights Watch (HRW) [advocacy website] called on the Sudanese government [JURIST report] to reform its discriminatory laws and abolish both the death penalty and all corporal punishment after a young Sudanese woman was sentenced to death by stoning for adultery. In March HRW urged the Afghan government [JURIST report] to release about 400 women and girls who were imprisoned for "moral crimes," including flight from unlawful forced marriage or domestic violence in addition to "zina," which is a sexual relationship outside of marriage due to rape or forced prostitution. In July 2011 UN Women [official website] released a report examining the persistent discrimination against women [JURIST report] around the world and concluded that the rule of law does not provide adequate protection for women in practice. A month earlier a UN Special Rapporteur stated that even the US is facing continued violence against women [JURIST report], especially poor, minority and immigrant women. In May 2011 the Council of Europe (COE) [official website] introduced [JURIST report] the first international convention to combat violence against women [text]. In the same month, UN High Commissioner for Human Rights Navi Pillay [official profile] urged Tunisia and Egypt [JURIST report] to ensure that women's rights receive constitutional protection.




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UN rights chief urges world powers to help end Syria uprisings
Blake Lynch on October 18, 2012 1:35 PM ET

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[JURIST] UN High Commissioner for Human Rights Navi Pillay [official profile] on Thursday urged world powers [press release] to work toward ending the violence in Syria. Pillay, who previously served as a UN war crimes judge, cited the possibility that both the Syrian Army and the Free Syrian Army have committed war crimes or crimes against humanity. In her statement, she emphasized the importance of coming together to aide Syria during this conflict:
I urge the Security Council to speak with one voice. That is essential in order to send a strong message. The longer this vicious conflict continues, the more lethal it becomes not just for Syria's own long-term future, but also for the entire region. Already, the spill-over into Turkey is threatening regional peace and security. I fear for Syia's children, many of whom will be scarred for life by the dreadful and prolonged traumatic experience they are suffering. ... By remaining divided, the international community is enabling the continuation of the suffering and helping create the circumstances for a wider regional conflict.
Extending her focus to other nearby countries, Pillay also expressed concern for the fragile situation of those people in revolutionary uprisings including Egypt, Libya, Tunisia and Yemen.

Since 2011, Syria has been engaged in an ongoing internal conflict between the Syrian army and the Free Syrian Army [official website]. Pillay's statement comes at a time of civil uprising and increased concern over the conflict in Syria. Last week a human rights watchdog uncovered evidence of the Syrian military using banned cluster bombs [JURIST report]. Earlier this month, the investigative commission on Syria testified before the UN Human Rights Council that human rights violations in Syria were committed by both sides and increasing in severity and number [JURIST report]. Pillay has previously addressed the rights violations [JURIST report] faced by Syrian citizens. In July Amnesty International accused government forces and rebels in Syria of summarily capturing and killing [JURIST report] opposition forces in violation of international humanitarian law.




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Kenya appeals court allows jurisdiction over international piracy cases
Rebecca DiLeonardo on October 18, 2012 1:10 PM ET

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[JURIST] An appeals court in Kenya ruled Thursday that Kenyan courts have jurisdiction to try international piracy suspects. The court's decision overturns a 2010 ruling [JURIST report] which found that Kenya does not have jurisdiction outside of its national waters. The appellate court, composed of a five-judge panel, concluded that the decision below failed to consider the negative economic effects [Africa Review report] experienced in Kenya as a result of piracy. The court determined that Kenya does have jurisdiction to try piracy suspects regardless of the location of the event or the suspect's national origin. In the decision, Judge David Maraga said the country derives its jurisdiction from both its national penal code and international law governing issues of piracy. He ordered the suspects in the case to be transferred to Mombasa to stand trial.

A number of countries around the world have been making attempts to solve the problem of maritime piracy. In May a United Arab Emirates court sentenced 10 Somali pirates [JURIST report] to 25 years in prison. Also that month six accused Somali pirates went on trial [JURIST report] in a Paris court for taking 30 crew members hostage in 2008 on the ship Le Ponant in the Gulf of Aden. The US government in March handed over [JURIST report] 15 suspected Somali pirates it captured in January to the Republic of Seychelles for prosecution. Italy ordered its first international piracy trial in February against nine Somali pirates, while France began its first international piracy trial [JURIST reports] in November. Last October the UN Security Council adopted a resolution encouraging states to criminalize and punish piracy after maritime piracy reached an all-time high [JURIST reports] in 2010. The UN also donated $9.3 million [JURIST report] in 2010 to fund piracy courts in Seychelles and Kenya, the only two countries that have created such courts.




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Federal appeals court strikes down part of DOMA
Daniel Mullen on October 18, 2012 12:42 PM ET

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[JURIST] The US Court of Appeals for the Second Circuit [official website] on Thursday struck down [opinion, PDF] Section 3 of the Defense of Marriage Act (DOMA) [text]. Section 3 defines "marriage" under federal law as a "legal union between one man and one woman as husband and wife" and "spouse" as a "person of the opposite sex who is a husband or a wife." Edith Windsor, the plaintiff in the case and the surviving spouse of a same-sex couple, married her partner in Canada in 2007 and was a resident of New York at the time of her spouse's death in 2009. Windsor was denied the benefit of the spousal deduction for federal estate taxes because of DOMA, prompting the legal challenge. After the US District Court for the Southern District of New York [official website] held [JURIST report] that DOMA failed to satisfy rational basis and is thus unconstitutional, the Bipartisan Legal Advisory Group (BLAG) of the US House of Representatives [official website] appealed the decision to the Second Circuit. Applying a standard of heightened judicial scrutiny, the Second Circuit held that DOMA unconstitutionally violated equal protection:
Homosexuals as a group have historically endured persecution and discrimination; homosexuality has no relation to aptitude or ability to contribute to society; homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and the class remains a politically weakened minority. ... DOMA's classification of same-sex spouses was not substantially related to an important government interest. Accordingly, we hold that Section 3 of DOMA violated equal protection and is therefore unconstitutional.
The Attorney General from the state of New York welcomed [press release] the decision, calling it a "major step forward in the fight for equality." The US Supreme Court [official website] may take up the issue this term, possibly in Windosor's case. Windsor filed for expedited review [JURIST report] in July.

The decision by the Second Circuit the most recent development in the ongoing debate over same-sex marriage [JURIST backgrounder]. Last week a court in Alabama held [JURIST report] that a state statute that defines marriage as between one man and one woman bars a woman from adopting her female partner's child. Last month, the US Department of Justice (DOJ) [official website] petitioned [JURIST report] the US Supreme Court to hear Windsor's case and another challenge to DOMA, arguing that the law unconstitutionally interferes with the right of the states to define marriage. Last year, the Obama administration instructed [press release] the DOJ to stop defending DOMA in court, prompting BLAG to take up the mantle of defending the law [JURIST report]. House Speaker John Boehner [official website] convened a meeting of BLAG and issued a statement [press release] that the constitutionality of the law should be "determined by the courts, not by the president unilaterally."




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Libya urged to turn Gaddafi military chief over to ICC
Fangxing Li on October 18, 2012 12:20 PM ET

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[JURIST] Amnesty International (AI) [advocacy website] on Thursday urged [press release] the Libyan government to hand over former military intelligence chief Abdullah al-Senussi [JURIST news archive] to the International Criminal Court (ICC) [official website] to face charges of crimes against humanity. Fearing there is little chance al-Senussi, a high-ranking member of the Muammar Gaddafi [BBC obituary; JURIST news archive] regime, could get a fair trial in Libya, AI has requested that Libyan authorities honor the ICC's outstanding arrest warrant. According to Hassiba Hadj Sahraoui, Deputy Middle East and North Africa Programme Director at AI, "fair trials are still out of reach," in Libya, undermining "the right of victims to see justice and reparation." AI met with several government officials and lawyers last month who allegedly relayed stories of threats and intimidation, especially for those who might represent Gaddafi loyalists and officials like al-Senussi. AI claims that al-Senussi has had access to "no independent organizations, relatives or his lawyers" and that the ICC is the only opportunity he has for a trial achieving real justice. Sahraoui noted "A year after the end of hostilities, victims of serious human rights abuses—by the former government as well as its opponents—have yet to see justice. What we witness today in Libya is revenge and not justice."

Al-Senussi was extradited to Libya [JURIST report] from Mauritania in September on charges of murder and persecution for planning attacks on civilians during the Libya conflict as well as organizing mass rapes [JURIST report]. The extradition to Libya happened despite a June 2011 ICC arrest warrant [JURIST report] for al-Senussi, Gaddafi and Gaddafi's son Saif al-Islam Gaddafi [JURIST news archive]. Earlier this month the Libyan government requested that the ICC allow Saif al-Islam to stand trial in Libya [JURIST report] rather than the ICC, promising a fair trial could be held internally. Libyan prosecutors in August announced [Al Jazeera report] that the prosecutors had completed their investigation of Saif al-Islam's alleged crimes and will soon approve a charge sheet, but in September it postponed [JURIST report] his trial for five months so the prosecution could obtain additional evidence from al-Senussi.




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UK appeals court rules Samsung tablets do not infringe on Apple design
Rebecca DiLeonardo on October 18, 2012 12:14 PM ET

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[JURIST] A UK appeals court ruled [decision PDF] Thursday in favor of Samsung Electronics (UK) Limited in a design infringement case brought by Apple, Inc. [corporate websites]. The decision by the three-judge panel upheld a lower court ruling [JURIST report] finding that three of Samsung's tablets did not infringe on Apple's registered design patent. The issue in the case was whether Samsung's tablets were so similar in design to Apple's iPad to constitute design infringement. The court determined that Samsung's tablets, which contain noticeably distinguishable features on their front face, including a Samsung logo, are not sufficiently similar to the iPad to find infringement. The court also upheld an order requiring Apple to post a notice on its website notifying consumers of the decision in the case. The court said the notice is necessary to prevent harm to Samsung's sales that may result from consumers who believe that the product is illegal.

Apple and Samsung have been embroiled in continuous patent litigation in courts around the world. On Monday Apple appealed a Tokyo District Court ruling [JURIST report] which dismissed Apple's claim that Samsung had infringed on its patents. Last week the US Court of Appeals for the Federal Circuit reversed an injunction [JURIST report] issued by the US District Court for the Northern District of California against Samsung in an ongoing patent dispute with Apple. In September the Federal Circuit similarly ordered [JURIST report] the Northern District of California to reconsider an injunction against Samsung's Galaxy Tab 10.1 [product backgrounder]. Only a week prior, Apple filed a motion [JURIST report] with the Northern District of California to prohibit Samsung from selling products in the US that supposedly infringe on Apple's patents. Also in September, Samsung announced [JURIST report] that it will be adding the iPhone5 [product backgrounder] to a new patent infringement suit against Apple.




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Breyer stays UK subpoena for Boston College IRA research
Julia Zebley on October 18, 2012 10:27 AM ET

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[JURIST] US Supreme Court [official website] Justice Stephen Breyer on Wednesday entered a temporary stay [order, PDF] to a subpoena from the British government [case materials] seeking research materials from Boston College [academic website]. The British government is attempting to gain access to research done for the Belfast Project [materials] at Boston College, an abandoned oral history of The Troubles [Guardian backgrounder], a period of violence in Northern Ireland between Protestant and Roman Catholic organizations. The project included interviews with dozens of members of the predominantly Protestant loyalist cause as well as members of the Roman Catholic nationalist movement, including members of the Irish Republican Army (IRA). Through the project, two IRA members interviewed divulged details of the murder of Jean McConville [NPR profile], a Belfast housewife and former IRA member. The IRA alleges that she was a spy for the British government, which forced her execution. The British government denies that, but there is speculation that Gerry Adams [official profile], the president of Sinn Fein [party website], the major political party of Ireland, ordered the killing of McConville [Boston College Chronicle report]. The stay is in effect until November 16 to allow the parties time to file a writ of certiorari and will be extended pending the court's discussion of the writ. The case is docketed as Ed Moloney and Anthony McIntyre v. United States [docket].

The US Court of Appeals for the First Circuit ruled [opinion] in July that there was no First Amendment [text] right applicable to protect the interviews. "To be clear, even if participants had been made aware of the limits of any representation about non-disclosure, Moloney and Mclntyre had no First Amendment basis to challenge the subpoenas. Appellants simply have no constitutional claim and so that portion of the complaint was also properly dismissed." Boston College ended its appeals after the First Circuit decision, but the two journalists who spearheaded the project, Ed Moloney [official profile] and Anthony McIntyre [official website] have continued to fight the subpoena. The British government is seeking the records of interviews with Brendan Hughes and Dolours Price. Hughes has since died, and Boston College has released those files. Price interviewed solely with McIntyre on the condition of complete confidentiality, and portions of her interview related to IRA materials are only known to McIntyre. Several US congress members [materials list] have expressed support for McIntyre and Moloney, fearing the revelation of Price's interviews will unsettle the peace between the United Kingdom and Northern Ireland and violate the Good Friday Agreement [text, PDF].




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Uruguay senate approves bill decriminalizing first-trimester abortions
Max Slater on October 18, 2012 9:57 AM ET

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[JURIST] Uruguay's Senate [official website, in Spanish] passed a bill [text, PDF, in Spanish] on Wednesday by a vote of 17-14 that legalizes abortions within the first 12 weeks of pregnancy. Although the bill declares [El Observador backgrounder, in Spanish] that the public health care system must allow any woman to decide whether or not to have an abortion, senators removed language from the bill that proclaimed, "every adult woman has the right to decide whether to end her pregnancy during the first 12 weeks of gestation." Senator Luis Gallo, who voted for the bill, said that while the bill is far from perfect, it is a step in the right direction. Last month Uruguay's lower house, the Chamber of Deputies [official website, in Spanish], approved the bill [JURIST report] by a narrow 50-49 margin. The bill will now go to President Jose Mujica [official profile, in Spanish], who is expected to sign it into law.

Abortion continues to be debated internationally. Two weeks ago a court in Alaska upheld a state law [JURIST report] requiring women under the age of 18 to notify their parents if they intend to get an abortion. Earlier that week a federal court in Arizona heard arguments [JURIST report] on the constitutionality of a state law that prohibits government funding to facilities that perform abortions. Earlier in October the US Court of Appeals for the Sixth Circuit [official website] upheld an Ohio law [JURIST report] limiting the use of RU-486, better known as the "abortion pill." In August South Korea's constitutional court upheld [JURIST report] its abortion ban. Last year voters in Liechtenstein rejected a proposal [JURIST report] to legalize abortion in the country after the acting Head of State expressed displeasure with the law and threatened to veto the proposed change. In 2010 the Center for Reproductive Rights (CRR) [advocacy website] criticized [JURIST report] the restrictive abortion laws of the Philippines as a "human rights crisis," resulting in the death of thousands of women annually.




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Northern Ireland court strikes down gay adoption ban
Maureen Cosgrove on October 18, 2012 9:25 AM ET

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[JURIST] The Northern Ireland High Court [official website] on Wednesday held [judgment] that a law permitting adoption only by heterosexual married couples or single individuals, regardless of their sexual orientation, is unlawful. The Northern Ireland Human Rights Commission (NIHRC) [advocacy website] challenged Articles 14 and 15 of the Adoption (Northern Ireland) Order 1987 [text], arguing that the "eligibility criteria for adoption are unjustifiably discriminatory." Justice Treacy concluded that the ban unlawfully discriminated against gay and unmarried couples. NIHRC Chief Commissioner Michael O'Flaherty praised the ruling [press release]:
Through this case the Commission has sought to protect the best interests of the child. Given the high numbers of children in care, who need a family in Northern Ireland, the importance of this case in widening the pool of prospective parents cannot be overstated. We are therefore delighted with this outcome. It brings Northern Ireland law in line with the rest of the UK and means that couples who are not married, those in civil partnerships and same sex couples will be now be allowed to apply to adopt. Mr Justice Treacy agreed with the Commission that preventing someone from even being considered to adopt because of their relationship status is a discriminatory practice.
Treacy also noted that there is no basis for excluding individuals from adopting on the basis of their relationship status.

The controversy surrounding the rights of same-sex couples has been ongoing across Europe in recent months. French Prime Minister Jean-Marc Ayrault told a French television station in June that laws legalizing marriage and adoption for same-sex couples [JURIST report] will soon be introduced in France. In March, the European Court of Human Rights (ECHR) [official website] ruled [JURIST report] that the right of a person in a same-sex partnership to adopt his or her partner's child is not protected by the European Convention on Human Rights [text, PDF].




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Federal appeals court denies Alabama request to reconsider immigration law
Maureen Cosgrove on October 18, 2012 8:36 AM ET

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[JURIST] The US Court of Appeals for the Eleventh Circuit [official website] on Wednesday denied a request [order, PDF] from Alabama state officials to reconsider its August ruling partially striking down [order, PDF] the state's immigration law [HB 56, PDF]. In September state officials petitioned [press release] the appeals court to reconsider its ruling [JURIST report] after a three-judge panel rejected provisions making it a crime for undocumented immigrants to work or solicit work, imposing criminal penalties on persons who rent property to illegal immigrants and requiring state officials to check the immigration status of children in public schools. The court ultimately upheld [opinion, PDF] several provisions, including one allowing police officers to check the immigration status of persons suspected of a crime.

Immigration law [JURIST backgrounder] has became a hot button issue over the past few years as many states have passed laws giving state and local officials more power to crack down on illegal immigration. The US Court of Appeals for the Ninth Circuit [official website] in September denied a request for a new injunction against a controversial provision of Arizona's immigration law [SB 1070, PDF] which requires law enforcement officials to check the immigration status of persons they stop or arrest if there is a reasonable suspicion that the person is in the US illegally. In August the US Court of Appeals for the Third Circuit [official website] again heard arguments [JURIST report] on two anti-illegal immigrant laws enacted in 2006 by the city of Hazleton, Pennsylvania, which deny permits to businesses that employ illegal immigrants and fine landlords who extend housing to them. In July a judge for the US District Court for the District of South Carolina [official website] declined to lift an injunction [JURIST report] against South Carolina's controversial immigration law [SB 20 materials], despite the recent Supreme Court ruling in Arizona v. United States [JURIST report]. Last May the American Civil Liberties Union (ACLU) and the National Immigration Law Center filed a class action lawsuit challenging Utah's immigration law, the same month that the ACLU filed a class action [JURIST reports] in the US District Court for the Southern District of Indiana [official website] challenging that state's immigration law.




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