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Legal news from Friday, January 18, 2013




UN report: Mali turmoil has led to human rights violations
Addison Morris on January 18, 2013 1:45 PM ET

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[JURIST] The UN Office of the High Commissioner for Human Rights (OHCHR) [official website] released a November 2012 report [text, PDF, in French] on Friday, stating [press brief] the crisis in Mali [CIA backgrounder, JURIST news archive] has led to human rights violations including rape, summary executions, and extra-judicial killings. According to the report, violations also include stoning, amputation, the recruitment of child soldiers, and forced marriage and gang rape of girls as young as 12. The current situation, says spokesperson Rupert Colville, "is linked to long-standing and unresolved issues" taking place within the country. The OHCHR report called on "all parties to abide by international human rights and humanitarian law standards," asking for the "initiation of a reconciliation process to address current human rights challenges as well as long-standing unresolved issues," and urging the Malian army and its supporters "to take extreme care not to carry out further reprisals as and when they retake territory in the North."

Violence in Mali has drawn much international attention for potential human rights abuses. International Criminal Court (ICC) [official website] Chief Prosecutor Fatou Bensouda announced earlier this week that her office has officially launched an investigation [JURIST report] into possible war crimes committed in Mali. Last week the interim president declared a state of emergency [JURIST report]. The prime minister of Mali, Cheick Modibo Diarra, was forced to resign [JURIST report] in December on state television after junta soldiers arrested him for attempting to leave the country in light of the ongoing humanitarian crisis threatening the nation. In September, Human Rights Watch [advocacy website] reported that three armed Islamist groups in northern Mali are abusing the local population and recruiting child soldiers [JURIST report]. Earlier that month UN High Commissioner for Human Rights Navi Pillay [official profile] condemned [JURIST report] human rights violations in Mali and called for international action to address the problems. In August officials from the ICC were in Mali investigating [JURIST report] whether the same two Islamic groups had committed war crimes in Mali.




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Italy court rejects Berlusconi's request to suspend trial until after election
Alison Sacriponte on January 18, 2013 12:37 PM ET

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[JURIST] Judges for the Second Court of Appeals of Milan [official website, in Italian] on Friday rejected a request by the lawyers of former Italian prime minister Silvio Berulsconi [BBC profiles, JURIST news archive] to suspend his appellate proceedings until after Italy's general elections in late February. Berlusconi was found guilty [judgement, PDF, in Italian] and sentenced [JURIST report] in October on charges of tax fraud for irregularities regarding the purchase of broadcasting rights by his private company Mediaset [corporate website, in Italian]. Berlusconi's lawyers proposed a suspension due to the fact that as a known political party chairman, Berlusconi is engaged with the campaign election. Judges stated the request was generic and the appeal process will not affect the campaign [Reuters report] nor present an impediment to his appearing in court. Berlusconi was sentenced to a one-year prison term, banned from political office and ordered to pay 10 million euro in damages. However, his sentence will not take effect [BBC news report] until all of his appeals are exhausted. Two other trials for additional charges are also pending for Berlusconi.

In addition to the tax fraud trial, the former prime minister, who stepped down last November, also faces charges of publicly releasing private wiretaps, embezzlement and paying for sex with an underage prostitute [JURIST reports]. In January 2011 the Italian Constitutional Court held hearings and subsequently struck down [JURIST reports] portions of an immunity law backed by Berlusconi granting public officials temporary amnesty from any charges while in office. Despite numerous trials, Berlusconi has never served prison time due to successful appeals or cases running past the statute of limitations.




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US military judge denies defense motions in 9/11, USS Cole trials
Benjamin Minegar on January 18, 2013 12:22 PM ET

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[JURIST] The chief US military judge at Guantanamo Bay [JURIST backgrounder] on Thursday denied defense motions filed in both the 9/11 military commission trial and the 2000 USS Cole [Navy backgrounder] bombing trial. Defense counsel for accused 9/11 [JURIST backgrounder] conspirators, including Khalid Shaikh Mohammed [JURIST news archive], filed a motion requesting that the court find that the US constitution was "presumed to apply" in the proceedings, and that the prosecution must bear the burden of proving that any particular provision did not apply. Colonel James Pohl ruled [order, PDF] that the request presented a nonjusticiable issue because the Commission cannot rule on hypothetical legal questions that do not aver "real and substantial controversy admitting of specific relief" relating to actual historical fact. In a separate case, counsel for accused USS Cole bomber, Abd al-Rahim al-Nashiri [JURIST news archive] filed a motion to dismiss alleged violations of the Military Commissions Act [text, PDF] in August 2012 on grounds that the bombing occurred "prior to the commencement of hostilities" between the US and al Qaeda [JURIST news archive]. Pohl denied the motion [order, PDF] and found that US political branches have made determinations that such hostilities did exist prior to 9/11 and that these determinations are owed judicial deference to the extent that they present questions of law. However, the factual burden required to prove whether or not hostilities coincided with the USS Cole bombing is to remain with the prosecution. The prosecution is seeking the death penalty for all five accused 9/11 conspirators, and alleged USS Cole bomber, Abd al-Rahim al-Nashiri.

Controversy continues to surround Guantanamo military trials. Last month a federal judge affirmed the denial of a habeas petition [JURIST report] for a Guantanamo detainee. Earlier that month a US military judge upheld [JURIST report] a request to censor 9/11 conspirators' testimony. In September a judge for the US District Court for the District of Columbia rejected [JURIST report] new restrictions on lawyers representing Guantanamo Bay detainees who have had their habeas corpus challenges denied or dismissed. The Department of Defense announced in 2011 that it had sworn charges against the five men [JURIST report] accused in the 9/11 attacks. In April 2011 US Attorney General Eric Holder announced that Khalid Sheikh Mohammed and the four others would be tried by a military commission [JURIST report] after the Obama administration abandoned attempts to have the 9/11 suspects tried in civilian courts. Controversy has also surrounded the USS Cole trial. In October, al-Nashiri boycotted his pretrial hearing [JURIST report] at the Guantanamo Bay facility. In September Military Judge James Pohl ruled [JURIST report] that he did not have the authority to allow media to broadcast al-Nashiri's trial. In February Pohl ruled [JURIST report] in al-Nashiri's case that attorney-client mail that was inspected at Guantanamo Bay can not be released by the Pentagon. Days before that ruling defense lawyers in the case of another Guantanamo detainee filed a suit [JURIST report] challenging the order for officials to read all legal correspondence for suspected 9/11 conspirators.




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UN rights chief criticizes impeachment of Sri Lanka chief justice
Samuel Franklin on January 18, 2013 11:50 AM ET

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[JURIST] A spokesperson for the UN High Commissioner for Human Rights Navi Pillay [official profile] expressed concern [press release] on Friday over the impeachment and removal of Sri Lanka's Chief Justice Shirani Bandaranayake [JURIST news archive]. In a statement, the official criticized the actions of the lawmakers against Bandaranayake, calling the situation a "gross interference in the independence of the judiciary and a calamitous setback for the rule of law in Sri Lanka." He also expressed concern about the legality of the removal of the chief justice after the Supreme Court ruled [JURIST report] that Parliament did not have the authority to impeach a chief justice. The statement also voiced doubts about the judicial independence of Bandaranayake's replacement [JURIST report], a former attorney general for the Sri Lankan government.

Sri Lankan President Mahinda Rajapaksa [official profile] signed the order to remove Bandaranayake from office on Sunday after the Sri Lankan parliament voted in an overwhelming majority to impeach the chief justice [JURIST reports] last week. Earlier this month, the UN expressed concern [JURIST report] over the chief justice's impeachment proceedings, saying they were "extremely politicized and characterized by lack of transparency, lack of clarity in the proceedings, as well as lack of respect for the fundamental guarantees of due process and fair trial." In December, Bandaranayake appealed a guilty verdict [JURIST reports] made against her earlier that month by a parliamentary committee on three charges of misconduct. The charges she was found guilty of dealt with conflict of interest, claiming of assets for tax assessment purposes and bias in handling a case against her husband.




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HRW: Myanmar shelling violates laws of war
Sarah Paulsworth on January 18, 2013 10:24 AM ET

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[JURIST] Myanmar's campaign of shelling on the state of Kachin violates the laws of war [HRW press release], Human Rights Watch (HRW) [advocacy website] said Friday, the same day the government announced a ceasefire. President Thein Sein [BBC profile] ordered the ceasefire [BBC report] after the country's parliament unanimously passed a motion [Reuters report] on the matter. HRW is calling on the government of Myanmar to grant humanitarian agencies access to tens of thousands of ethnic Kachins displaced by the fighting. "Burmese President Thein Sein needs to order his army commanders to respect the laws of war and end unlawful attacks on civilians," said Phil Robertson, HRW's deputy Asia director. "Both the Burmese army and the [Kachin Independence Army (KIA)] should take all necessary precautions to keep the tens of thousands of civilians in and around Laiza from harm's way." A ceasefire deal reached 17 years ago [Al Jazeera report] between the KIA and Myanmar's government broke down in June 2011. KIA is the military branch of the Kachin Independence Organization (KIO), which seeks to govern Kachin and obtain the rights and autonomy afforded to it in the 1947 Pagalong Agreement [text].

In recent months Myanmar has taken steps to reform its human rights records but has also faced criticism for not doing enough. Earlier this week Myanmar repealed a law [JURIST report] that was used by the nation's military junta to impose long prison sentences on dissidents. The law banned protests against the national convention and allowed for prison sentences of up to 20 years for writing or delivering speeches that pose a threat [AP report] to Myanmar's peace and stability. Also this week HRW [advocacy website] called on authorities in Myanmar to drop criminal charges against nine peaceful protesters [JURIST report] who were demonstrating without a permit in Rangoon in September on International Peace Day. Myanmar began releasing political prisoners [JURIST report] including political dissidents and former military intelligence personnel in November in conjunction with US President Barack Obama's visit to the nation. Myanmar officials in September announced amnesty for 514 prisoners [JURIST report], identified by activists to be several political detainees and foreigners. That same day, HRW publicly demanded the immediate release of all remaining political prisoners in Myanmar and called for a lifting of travel and other restrictions on those who are freed.




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Bahrain court releases human rights activist on bail pending trial
Max Slater on January 18, 2013 10:22 AM ET

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[JURIST] A court in Bahrain on Thursday released [AI press release] human rights activist Sayed Yousif Al-Muhafda [official Twitter] on bail pending trial for charges of spreading false news to harm security, according to Amnesty International (AI) [advocacy website]. Al-Muhafda, the acting deputy head of the Bahrain Center for Human Rights (BCHR) [advocacy website], was arrested in November [JURIST report] during an unauthorized protest. After being released without charge, Al-Muhafda was arrested again in December during a clash between protesters and the government in Manama, Bahrain's capital. In its press release, AI declared that Al-Muhafda was likely arrested because of his advocacy for human rights and proclaimed that he has freedom of expression rights under international law that Bahrain's government must not violate:
The 1998 UN Declaration on Human Rights Defenders expressly reaffirms the right to freedom of expression guaranteed under the International Covenant on Civil and Political Rights (ICCPR), by which human rights defenders have the right to freely publish, impart or disseminate to others views, information and knowledge on all human rights and to draw public attention to their observance, both in law and in practice.
Al-Muhafda is scheduled to appear in court on January 29 when witnesses are expected to testify.

Bahrain [JURIST news archive] has faced international scrutiny recently regarding its treatment of political prisoners. Last week the highest Bahraini appellate court upheld the convictions [JURIST report] of 13 prominent pro-democracy protestors convicted by military tribunal in 2011 on charges of plotting to overthrow the monarchy. In December Bahrain's High Criminal Court of Appeals commuted death sentences [JURIST report] for two protesters, instead sentencing them to life imprisonment. Earlier in December the prison sentence for outspoken Bahraini rights activist Nabeel Rajab was reduced by one year [JURIST report]. In November AI released a brief [JURIST report] detailing how Bahrain had failed to meet its obligations and promises to ensure respect for human rights and prevent further torture within the country. In October the Bahrain appeals court upheld verdicts against two teachers [JURIST report] for organizing a teacher's strike to support anti-government protests. Earlier in October the Bahrain Court of Cassation upheld jail sentences [JURIST report] issued to nine medics convicted for their involvement in Bahrain's pro-democracy uprising in February and March of 2011.




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Federal judge dismisses lawsuit challenging Indiana right-to-work law
Max Slater on January 18, 2013 9:34 AM ET

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[JURIST] A judge for the US District Court for the Northern District of Indiana [official website] on Thursday dismissed a lawsuit brought by a union challenging Indiana's right-to-work law [text, PDF] on the grounds that the challenge could not succeed in federal court. The International Union of Operating Engineers Local 150 [official website] filed the suit [JURIST report] last February arguing that the right-to-work law violates unions' free speech rights under the US and Indiana constitutions by hampering collection of money to pay for unions' political speech. Chief District Judge Philip Simon rejected the union's challenge [AP report], saying that the state's interest in creating a business-friendly environment is a legitimate reason for passing the law. The union is considering appealing the district court's decision to the US Court of Appeals for the Seventh Circuit [official website].

Many states have had contentious disputes over collective bargaining rights recently. In December Michigan approved legislation [JURIST report] known as "Freedom to Work" that makes payment of union dues voluntary and limits workers' ability to strike. In September the Michigan Supreme Court ordered [JURIST report] a union-backed measure to amend the state constitution to include a right to labor unionization and collective bargaining to appear on the November ballot. The measure was defeated 57-43 percent [AP report]. Wisconsin faced a challenge against its legislation which limited the collective bargaining rights of public employee unions. In July the Wisconsin Supreme Court ruled [JURIST report] not to reopen a case challenging the state's Budget Repair Bill [text, PDF] because of a justice's refusal to recuse himself. Four votes were needed, but only three justices were in support of reopening the case. The court upheld [JURIST report] the bill in June 2011 thereby overruling the Dane County Circuit Court [official website] finding [JURIST report] a month earlier that legislators had violated the "open meetings" rule. The court ruled that the lower court had "invaded the legislature's constitutional powers." In March a judge for the US District Court for the Western District of Wisconsin [official website] ruled unconstitutional [JURIST report] certain provisions of the Budget Repair Bill reasoning that unions which supported Governor Scott Walker [official website] during his election were apparently given preferential treatment. In November 2011 Ohio voters rejected [JURIST report] a bill which would have impacted Ohio's 400,000 public workers by limiting their ability to strike and collectively bargain for health insurance and pensions.




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Iran human rights lawyer temporarily released from prison
Sarah Posner on January 18, 2013 8:53 AM ET

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[JURIST] Iranian lawyer and prominent human rights activist Nasrin Sotoudeh [JURIST news archive] was temporarily released from prison on Thursday, after spending over two years in prison, her husband said. Sotoudeh left prison in Tehran for three days and was greeted Thursday by her husband and two children. Sotoudeh is serving six years in prison for her September 2010 arrest and conviction for propaganda and harming national security. Sotoudeh angered authorities [Guardian report] by representing political activists and highlighting the execution of juveniles in the country. Iranian authorities did not give a reason [Reuters report] for temporarily freeing Sotoudeh. Many activists and and campaigners believe that the charges against Sotoudeh are false and merely reflect the authorities's objection to Sotoudeh's internationally recognized human rights activism.

In December Sotoudeh ended a 49-day hunger strike [JURIST report] in protest of her prison conditions and a travel ban imposed on her family. UN High Commissioner for Human Rights Navi Pillay had expressed concern for Sotoudeh's deteriorating health and urged the Iranian government to lift the travel ban, saying the ban was not justified by international law. After judicial authorities agreed to lift the travel ban on Sotoudeh's daughter, Sotoudeh ended her strike. Sotoudeh was sentenced in January 2011 to 11 years in prison after being found guilty of "acting against national security" and "making propaganda against the system" for which she will serve five and one years, respectively.




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Zimbabwe president, PM reach agreement on new constitution
Sarah Paulsworth on January 18, 2013 7:56 AM ET

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[JURIST] Zimbabwe's President Robert Mugabe [BBC profile; JURIST news archive] and the country's Prime Minister Morgan Tsvangirai [BBC profile; JURIST news archive] reached an agreement on Thursday on a new constitution. Details of the agreement have not yet been made public [BBC report]. Tsvangirai previously stated that the passage of the constitution was a condition for the conduction of elections scheduled for later this year. According to Mugabe, he will announce in the next few weeks when a referendum will be held [VOA report] to approve the new constitution. Mugabe and Tsvangirai are political rivals who formed a coalition government in 2008 in the wake of highly contested elections [JURIST reports].

Earlier this month Human Rights Watch (HRW) [advocacy website], released [JURIST report] a report [text, PDF] calling for Zimbabwe to reform its current legislative and electoral environment before this year's elections. Zimbabwe has been criticized for its failure to ensure compliance with international human rights standards. In November the Observatory for the Protection of Human Rights Defenders (OBS) [FIDH backgrounder] released a report finding that human rights defenders in Zimbabwe continue to be harassed [JURIST report]. In March various human rights groups urged South African courts to prosecute Zimbabwe for violations including torture and forced labor [JURIST reports] of civilian workers in illegal mining camps. In June 2009 Amnesty International (AI) [advocacy website] released a report [press release] stating that Zimbabwe was still experiencing serious human rights violations [JURIST report], such as the arrest and detention of human rights activists, and needed to confront issues that led to such problems.




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