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Legal news from Monday, November 19, 2012




Afghanistan president claims US violating detainee pact
Blake Lynch on November 19, 2012 3:55 PM ET

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[JURIST] Afghanistan President Hamid Karzai [BBC profile] said Sunday that US forces were capturing and holding Afghans in violation of a detainee transfer pact [statement] and that US forces should turn over that responsibility to Karzai's forces. Karzai's statement urged Afghan officials to make efforts towards toward obtaining entire responsibility for Bagram Prison [official website]. Listed abuses included Afghan detainees held by US forces despite Afghan rulings to the contrary and the continued arrest of Afghans by US forces. The statement comes less than a week after negotiations began on a bilateral security agreement that will govern US military presence in the country after the majority of US troops withdraw from Afghanistan after 2014. The US has delayed the handover of detention facilities to Afghanistan citing both lack of preparation by Afghan leaders in detention center management and discrepancies over treatment of detainees the US deems too dangerous to release. Both countries agreed to sign the bilateral security agreement within a year.

The rights of Afghan detainees at Bagram has been a controversial issue as of late. JURIST Guest Columnist Ken Roach recently discussed the issue of prisoners seeking substitute justice [JURIST op-ed] in the courts of other democracies. In September the US handed over Bagram [JURIST report] to Afghanistan but retained control over 600 prisoners. In February 2011 District Judge John Bates of the US District Court for the District of Columbia [official website] granted a motion to amend [JURIST report] petitions for writs of habeas corpus for four detainees held at Bagram. In May 2010 a panel of the US Court of Appeals for the District of Columbia Circuit ruled that detainees held at Bagram could not bring habeas corpus challenges in US courts [JURIST report]. In January 2010 the US Department of Defense released a list of names [JURIST report] of 645 prisoners then detained at Bagram in response to a Freedom Of Information Act lawsuit filed [JURIST reports] by the ACLU in September 2009.




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Kazakhstan court upholds sentencing of opposition leader
Brandon Gatto on November 19, 2012 3:47 PM ET

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[JURIST] A court in Kazakhstan [JURIST news archive] on Monday upheld the conviction of an outspoken opposition leader accused of inciting dissent in an attempt to overthrow the country's government. Vladimir Kozlov [official profile, in Russian], head of the unofficial Alga! party [official website, in Russian], was found guilty of fomenting unrest and sentenced to seven-and-a-half years in jail [JURIST report] last month. There, a judge found that Kozlov had instigated a series of violent clashes between police and striking oil workers [RFE/RL report, in Kazakh] that left 15 people dead last December. In particular, the court found that the political activist had turned a labor dispute into a politicized strike on orders from billionaire Mukhtar Ablyazov, a rival of Kazakhstan President Nursultan Nazarbayev [official website, in Russian]. Despite his conviction and its affirmation [AP report] by the courts, Kozlov has consistently denied the charges and proclaimed that his case was an attempt by the President to quell civil protests within the country.

Kazakhstan has recently drawn criticism from the international community for its human rights record. Last month Human Rights Watch (HRW) [advocacy website] claimed that oil workers in the country face mistreatment [JURIST report] and repression at the hands of the government and oil companies. In August HRW urged Kazakhstan to ensure that the trials of Kozlov, another political activist, and an oil worker comport with international legal standards [JURIST report] for fair trials. In July UN High Commissioner for Human Rights Navi Pillay [official profile] called for an independent probe [JURIST report] into the December unrest between oil workers and an oil company. In June HRW demanded [JURIST report] that the National Security Committee of Kazakhstan publicly disclose the reason for bringing new charges against a group of labor activists and an oil worker who participated in the December unrest. The committee charged them with "calling for the forcible overthrow of the constitutional order." Earlier that month a court in Kazakhstan sentenced [JURIST report] 13 out of 37 defendants to between three and seven years of imprisonment for their participation in unrest that occurred last December. Sixteen of the remaining defendants faced conditional sentences [BBC report] while five defendants were given amnesty and three were acquitted.




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Myanmar frees political prisoners while welcoming Obama
Brandon Gatto on November 19, 2012 3:25 PM ET

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[JURIST] The government of Myanmar [JURIST news archive] on Monday began releasing a number of political prisoners at the same time US President Barack Obama [official website] arrived for a historic visit to the former dictatorship. Specifically, 66 prisoners were to be freed [Reuters report] in conjunction with the first trip to the country made by any sitting US president. While two-thirds of the prisoners were merely political dissidents, the remaining third was supposedly composed of former military intelligence personnel. The prisoners' release comes less than a week after Myanmar announced that it had freed 452 others [JURIST report] on humanitarian grounds and as a goodwill gesture by the nation.

Concern over Myanmar's human rights record has been growing recently. Last month, Human Rights Watch (HRW) [advocacy website] urged the government of Myanmar to do more to end sectarian violence [JURIST report] between the Rakhine Buddhists and Rohingya Muslims. In August, Physicians for Human Rights reported that Myanmar's army is still committing human rights abuses [JURIST report] against ethnic minorities in Karen state. Earlier in August, HRW accused Myanmar security forces of human rights abuses [JURIST report] against a minority religious community. In July, UN High Commissioner for Human Rights Navi Pillay [official website] also expressed concern [JURIST report] about both the continued violence in Myanmar and the country's human rights abuses committed in dealing with it.




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ICJ rules for Colombia in dispute with Nicaragua over islands
Addison Morris on November 19, 2012 1:52 PM ET

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[JURIST] The International Court of Justice (ICJ) [official website] ended a long-running territorial and maritime dispute between Colombia and Nicaragua [BBC profiles] by ruling [judgment, PDF] Monday that Colombia has sovereignty over a group of small islands in the western Caribbean, while Nicaragua has control over a large amount of the surrounding sea and seabed. The court decided unanimously [press release, PDF] that Colombia has sovereignty "over the islands at Alburquerque, Bajo Nuevo, East-Southeast Cays, Quitasueno, Roncador, Serrana and Serranilla," finding that "the evidence of Colombia's acts of administration with respect to the islands" provides "very strong support for Colombia's claim of sovereignty." In regards to maritime control, the court recognized that the boundary lines they appropriated have the "effect of dividing the relevant area between the Parties ... in Nicaragua's favour." However, they found that the results were not so disproportionate "as to create an inequitable result."

Nicaragua originally brought legal action against Colombia in December 2001, claiming that Colombia had no legal control of the islands. Public hearings were finally held between April and May of this year. A portion of Nicaragua's argument was rejected in 2007, when the ICJ upheld a 1928 treaty between Nicaragua and Colombia [JURIST report] establishing that Colombia owned the islands of San Andres, Providencia and Santa Catalina.




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Australia approves extradition of alleged Serbian war criminal
Daniel Mullen on November 19, 2012 12:04 PM ET

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[JURIST] A spokesperson for the Australian Minister for Justice [official website] said Saturday that he has approved the extradition of Serbian war crimes suspect, Dragan Vasiljkovic [Trial Watch backgrounder], to Croatia. Vasiljkovic is accused of torturing and killing captured members of the Croatian army and police during the 1991-1995 Croatian War for Independence [GlobalSecurity backgrounder]. The spokesperson stated [AFP report] that the minister has determined that Vasiljkovic should be surrendered to face prosecution and that he could seek review of the decision. Vasiljakovic denies the allegations and is preparing an appeal to the Federal Court to challenge his extradition.

The decision by the Minister for Justice came after a 13-month review of the case. Vasiljkovic was first arrested [JURIST report] in Australia in 2006 following an extradition request from the Croatian government. He has been fighting his extradition in the Australian courts ever since, claiming that he would not be able to receive a fair trial in Croatia. Under pressure from the UN, Croatia has been attempting to address [JURIST report] human rights abuses from its war for independence before it joins the EU in July 2013.




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HRW: Ivory Coast military committed abuse, torture
Alison Sacriponte on November 19, 2012 10:47 AM ET

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[JURIST] The Ivory Coast's military committed widespread human rights abuses in August and September, Human Rights Watch (HRW) [advocacy website] said in a report [text, PDF] released Monday. The report details the alleged abuses including arbitrary arrests, illegal detentions, extortion and torture. The military crackdown was in response to a series of coordinated attacks on military installations in August, allegedly committed by militants loyal to former president Laurent Gbagbo [BBC profile]. HRW compiled its findings during a three-week mission to Abidjan beginning in late August after the military response was initiated. While HRW says [press release] that Ivorian authorities have the responsibility and right to respond to security threats, the Ivorian authorities have largely given that power to the country's military, the Republican Forces, which has no legal basis for arresting, interrogating and detaining suspects. In its official response to HRW, the Ivorian government stressed the the threat to the country and the need to support the military against the threat. However, authorities did promise an investigation into the report's allegations and said that prosecutions would result if anyone was suspected of human rights violations. HRW contends that the Republican Forces remain largely above the law that prosecuting those involved is an essential step toward returning to the rule of law and promoting reconciliation.

Violence in the Ivory Coast [JURIST news archive] has been continuous since the 2010 presidential election. Earlier this month the International Criminal Court (ICC) [official website] found Gbagbo fit to stand trial, which had been posponed [JURIST reports] since June. Gbagbo is charged with crimes against humanity on four counts including murder, persecution, inhumane acts, rape and other sexual assaults allegedly committed during the 2010 post-election violence. Through June 2012, violence continued [JURIST report] from Gbagbo supporters along the Liberian-Ivorian border, killing at least 50 civilians. In February HRW expressed concern over the thoroughness of the investigation into the post-election violence, while in December 2010 the ICC urged [JURIST reports] those in the Ivory Coast to refrain from further violence, which has yet to seize.




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DOJ files antitrust suit against eBay
Benjamin Minegar on November 19, 2012 10:27 AM ET

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[JURIST] The US Department of Justice (DOJ) [official website] on Friday filed a civil antitrust lawsuit [complaint] in the US District Court for the Northern District of California [official website] against online auction company eBay [corporate website] alleging violations of antitrust law occurring from 2006 to 2009. The complaint avers that eBay violated the Sherman Act [15 USC § 1 text; Cornell backgrounder], by entering into a no-solicitation and no-hiring agreement with business software producer Intuit [corporate website] pursuant to which the companies agreed not to hire or recruit each other's employees. In particular, the DOJ challenges the legality of provisions that expressly prohibited eBay from hiring Intuit employees, even upon their affirmative inquiry to eBay for employment. The DOJ stated [press release] that the these provisions "eliminated a significant form of competition to the detriment of affected employees who were likely deprived of access to better job opportunities and salaries." The complaint elaborates:
Firms in the same or similar industries often compete to hire or retain talented employees. This is particularly true in technology companies in which particular expertise and highly specialized skills sought by one firm can often be found at another firm. Solicitation of skilled employees at other companies is an effective method of competing for needed employees ... eBay's agreement with Intuit eliminated this competition.
According to the DOJ, former eBay Chief Executive Officer, Meg Whitman and Intuit founder and Chairman of the Executive Committee, Scott Cook [Forbes profiles], were "intimately involved" in the formation and enforcement of the "handshake" agreement, which the DOJ characterized as an unlawful, "naked restraint of trade." The California Department of Justice [official website], headed by Attorney General Kamala Harris [official profile], worked closely with the US DOJ and filed a similar suit [press release] concurrently.

The DOJ has recently been involved in other lawsuits involving alleged violations of the Sherman Act. In early September a judge for the US District Court for the Southern District of New York [official website] approved [JURIST report] a settlement agreement between the DOJ and e-book publishers, including Apple, Hachette, HarperCollins, MacMillan, Penguin and Simon & Schuster [corporate websites] for alleged price-fixing violations under the Sherman Act. eBay has also been involved in litigation over trademark infringement in recent years as well. In July 2011 the EU Court of Justice [official website] ruled [JURIST report] that eBay may be liable on the part its users for infringing cosmetic producer L'Oreal's trademarks. In July 2010 Connecticut company XPRT Ventures LLC filed suit [JURIST report] against eBay in the US District Court for the District of Delaware [official website], claiming infringement of six patents for online auctions and payment systems.




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China dissident poet setenced to 12 years for contract fraud
Sarah Paulsworth on November 19, 2012 10:09 AM ET

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[JURIST] A dissident Chinese poet was sentenced to 12 years of imprisonment on Monday on charges of contract fraud. Li Bifing was sentenced [AFP report] by the Shehong County Court in China's Sichuan province, according to a lawyer. Li previously served five years in jail [AP report] for his involvement in the 1989 protests on Tiananmen Square. Li was detained two months after his friend Liao Yiwu escaped from China [Guardian report] in June and fled to Germany. Li was also sentenced to jail time in 1998 due to alleged fraud related to the sale of a safe-box from his workplace. This prison sentence arose after Li investigated a strike by textile workers and wrote an open letter to authorities about his findings. Li's lawyer Ma Xiaopeng said that Monday's court hearing was flawed.

Dissidents and human rights advocates have encountered significant legal problems in China. In September Beijing's Second Intermediate People's Court denied an appeal [JURIST report] by dissident artist Ai Weiwei challenging a 15 million yuan (USD $2.4 million) fine for back taxes. The Chinese government levied the fine against Beijing Fake Cultural Development Ltd., the company that promotes Ai's work. In June a Chinese intermediate court dismissed fraud charges [JURIST report] against Ni Yulan, a human rights lawyer with disabilities, resulting in a two-month reduction to her two-year and eight-month sentence while upholding convictions against the lawyer for causing a disturbance. Ni had assisted victims of government land seizures [Guardian report], including those displaced by the Beijing Olympics project, prior to their arrest in August 2011. The fraud charges included allegations that Ni received 5,000 yuan (USD $783) through fabrication of her identity as a lawyer. Ni and her husband, Dong Jiqin, were sentenced [JURIST report] in April by a lower court on charges of fraud and inciting disturbance. The sentence faced criticism by human rights organizations such as Amnesty International [advocacy website], which for their immediate release. Also in June a Chinese court in the southwestern city of Chongqing quashed [JURIST report] the sentence against a Chinese blogger and former forestry employee for lack of evidence.




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Michigan court rules ban on life without parole for minors does not apply retroactively
Sarah Paulsworth on November 19, 2012 9:04 AM ET

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[JURIST] The Michigan Court of Appeals [official website] ruled [opinion, PDF] Friday that the US Supreme Court decision in Miller v. Alabama [opinion, PDF; JURIST report], which held that sentencing minors to life without parole constitutes cruel and unusual punishment under the Eighth Amendment [text], will not apply retroactively. The appeals court ruled that the Supreme Court decision "is not to be applied retroactively to cases on collateral review ... because the decision is procedural and not substantive in nature." The court also urged Michigan's legislature to bring the state's laws into compliance with the Miller ruling, noting that in Miller, a juvenile is defined as under the age of 18, but in Michigan a juvenile is defined as under the age of 17. Michigan is among the top states [AP report] for sentencing of minors to life without the possibility of parole, with more than 350 people currently serving life sentences without the possibility for parole for crimes committed in their youth.

In October Human Rights Watch (HRW) [advocacy website] wrote a letter to Pennsylvania Governor Tom Corbett asking him to veto [JURIST report] legislation [SB 850 text] which would maintain the sentence of life without parole as an option for child offenders. According to HRW, the bill would go against the spirit of the recent US Supreme Court ruling in Miller. In June the US Supreme Court ruled 5-4 in two combined cases, Miller v. Alabama and Jackson v. Hobbs [SCOTUS backgrounders] that mandatory life sentences for juveniles violate the Eighth Amendment. The decision has been seen by many as an important step toward restoring principles of rehabilitationism [JURIST op-ed] to a system that, over the last 20 years, has come almost entirely unmoored from its ideological foundations. Some observers have argued that the reasoning the court used in this case could easily be extended [JURIST op-ed] in the future to abolish life in prison without the possibility of parole sentences for all juvenile homicide cases.




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