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Legal news from Thursday, August 23, 2007

Austrian neo-Nazi writer arrested in Spain for denying Holocaust
Mike Rosen-Molina on August 23, 2007 5:29 PM ET

[JURIST] An Austrian writer wanted for denying the Holocaust was arrested Thursday by Spanish police in Malaga, Spain. Gerd Honsik [Wikipedia profile] was convicted of neo-Nazi activities in his native Austria in 1992 and sentenced to 1 1/2 years in prison, but fled to Spain to avoid jail time. Honsik has written books denying the Nazi genocide against Jews during World War II and currently publishes an anti-Semitic newspaper in Spain. Denying the Holocaust is a criminal offense in Austria. Austria has not yet launched a formal extradition request for Honsik, and it is not clear if it intends to do so. In another Austrian Holocaust denial case, British historian David Irving [BBC profile] pleaded guilty in February 2006, but was released from prison [JURIST reports] later that year after serving only 13 months of his three-year sentence.

Austria is not the only country to criminalize Holocaust denial. In February, a German court sentenced anti-Semitic writer Ernst Zundel [ADL profile; CBC profile] to five years in prison after finding him guilty on 14 counts of incitement, libel and disparaging the dead [JURIST report]. Holocaust denial constitutes a crime under Section 130 (3) [text] of the German Federal Criminal Code. In April, the European Union approved a framework decision [press release, PDF; JURIST report] aimed at criminalizing denial of the Holocaust [JURIST news archive] and other genocides following six years of intense debate. AP has more.

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Would-be George Wallace assassin slated for release
Mike Rosen-Molina on August 23, 2007 4:30 PM ET

[JURIST] The man who shot former Alabama Governor George Wallace [ADAH profile] in 1972 will be released from prison this year, after serving 35 years of a 53-year sentence, a prison official said Thursday. Arthur Bremer [PBS profile] is scheduled to leave prison on December 16, although he may be released sooner for good behavior. Bremer has not expressed any remorse for the shooting, which paralyzed Wallace in the legs for life, calling Wallace a "segregationist dinosaur." In his diary, part of which was published in 1973 as An Assassin's Diary [PBS report], Bremer wrote that his primary motivation for the shooting was not opposition to Wallace's pro-segregation politics, but a desire to become notorious. Wallace's son said in an interview Thursday that Bremer's attack contributed to his father finding religion and rethinking his position on segregation later in life [Press-Register report], but declined to say more. AP has more.

Wallace, a four time governor of Alabama, began his career as a staunch opponent of integration. On September 2, 1963, he ordered the Tuskegee high school surrounded [TIME report] with Alabama National Guard troops in an effort to prevent its integration pursuant to a federal court order in Lee vs. Macon County. In response, President John F. Kennedy federalized the Guard and sent it back to its barracks. Wallace recanted his pro-segregation stance in the late 1970s. He died in 1998.

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Federal appeals court to reconsider case of 'enemy combatant' held in US
Mike Rosen-Molina on August 23, 2007 3:55 PM ET

[JURIST] The US Court of Appeals for the Fourth Circuit on Wednesday agreed to reconsider [order, PDF] its June ruling [PDF text; JURIST report] that the military cannot seize and imprison civilians lawfully residing in the United States and detain them as "enemy combatants" [JURIST news archive]. In June, the court rejected government arguments that the president was authorized to order the military seizure of Illinois resident and Qatari native Ali Saleh Kahlah al-Marri [Brennan Center case materials] from civilian custody and hold him indefinitely in a military jail without charge. The Department of Justice subsequently asked the court to re-hear al-Marri's case en banc [petition, PDF; JURIST report].

The DOJ had argued that the federal courts lacked jurisdiction [JURIST report] over al-Marri's claims under the Military Commissions Act of 2006 [PDF text; JURIST news archive], but the Court rejected that argument. AP has more. SCOTUSblog has additional coverage.

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'Chemical Ali' killed Shi'a rebels: court testimony
Mike Rosen-Molina on August 23, 2007 3:21 PM ET

[JURIST] Saddam Hussein's cousin and former Iraqi defense minister Ali Hassan al-Majid [BBC profile; JURIST news archive], also known as Chemical Ali, personally killed at least 15 men suspected of participating in a Shi'a uprising [HRW backgrounder] in southern Iraq following the 1991 Persian Gulf War, according to testimony offered Thursday in the crimes against humanity trial [JURIST report] ongoing at the Iraqi High Tribunal. Witness Ali Hadi Jaber, a student at the time, said he was arrested and taken to a military detention facility in Basra, where al-Majid randomly selected which prisoners to shoot with a collapsible AK-47. Jaber testified that he saw al-Majid kill 15 men. Another witness also said he saw al-Majid kill prisoners. Reuters has more.

Al-Majid and 14 other former Saddam Hussein-era officials are on trial for their role in the government's violent response to the uprising, during which tens of thousands of civilians were killed. They are charged with crimes against humanity and could face the death penalty. Al-Majid has already been sentenced to death [JURIST report] for his role in the 1988 Anfal campaign [HRW backgrounder] that slaughtered hundreds of thousands of Kurds. Five defendants in the Anfal trial are currently appealing [JURIST report] their sentences to the Iraqi High Tribunal's Appeals Chamber. If the death sentences are upheld, Iraqi law requires the executions to take place within 30 days of the court ruling. The new case is the third in a series of trials involving Hussein-era officials [JURIST news archive]. The first was the Dujail case [BBC timeline] involving crimes against humanity committed in that Iraqi town in 1982, which resulted in the hangings of Hussein and his co-defendants.

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Swiss high court rejects handover of Yukos documents for 'political' prosecution
Mike Rosen-Molina on August 23, 2007 2:32 PM ET

[JURIST] The Swiss Federal Tribunal [official website], Switzerland's supreme court, ruled Thursday that Swiss authorities cannot hand over to Russia financial documents linked to Russian oil giant Yukos [corporate website; JURIST news archive], finding that the Russian prosecution of former Yukos owner Mikhail Khodorkovsky [defense website; JURIST news archive] and his business partner Platon Lebedev [JURIST news archive] was politically motivated. Referring to Khodorkovsky, the court said that facts led it "to the inference that the appellant is under pursuit for hidden motives, notably in relation to his political opinions” and that the Russian government had prosecuted Khodorkovsky to “sideline declared or potential political adversaries.” The ruling, which overrides a December decision by the Swiss Attorney General to share the documents with Russia, is final and cannot be appealed. Philippe Neyroud, the Swiss lawyer acting for Khodorkovsky and Lebedev, told AFP that the ruling was unprecedented. “For the first time, with the exception of extradition requests, Switzerland has rejected legal assistance to a state on the grounds of violations of human rights.”

The Swiss court has already frozen at least $48 million of Swiss funds tied to Yukos and last year had temporarily refused [JURIST report] to release the funds to Russian authorities since they failed to meet Swiss standards for judicial assistance. Russia suspects that Swiss accounts hold money from illegal Yukos deals involving fertilizer, oil, and oil products. In 2005, Khodorkovsky was sentenced [JURIST report] by a Russian court to eight years in prison on charges of fraud and tax evasion. The Swiss court has been involved in the Yukos investigation since March 2004 in connection with the questionable funds. Reuters has more. Newsru.com has more.

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Kenya president refuses to sign bill that would force journalists to disclose sources
Mike Rosen-Molina on August 23, 2007 1:36 PM ET

[JURIST] Kenyan President Mwai Kibaki [official profile] has refused to sign a bill [press release] that would give courts the authority to force journalists to disclose confidential sources. The Media Bill 2007 also establishes an independent council to adjudicate complaints against the media, but Kibaki specifically objected Wednesday to clause 35 subclause (4), which he said "could act as a great inhibition of press freedom and undermine the democratic strides we have made as a nation." The provision reads:

When a story includes unnamed parties who are not disclosed and the same becomes the subject of a legal tussle as to who is meant, then the editor shall be obligated to disclose the identity of the party or parties referred to.
Kibaki said that "The meaning of the expression 'unnamed parties' has not been qualified or restricted and can be construed to include subjects of a story as well as sources of information." Under the Kenyan constitution [PDF text], the president can object to a specific provision of a bill and send it back to the National Assembly [official website]. The legislature must now vote to remove the provision requiring reporters to reveal anonymous sources or vote with a 65 percent majority to overrule the president's decision.

Last week, more than 300 Kenyan journalists marched [JURIST report] in the capital city of Nairobi in opposition to the bill. Kenyan journalists say confidential sources have allowed the media to expose government scandals, including the Goldenberg affair [BBC report; JURIST report], which involved a bogus gold and diamond import/export business that fleeced government funds during the 24-year rule of former Kenyan President Daniel arap Moi [official profile]. The Nation has more.

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Japan bar association calls for moratorium on executions
Mike Rosen-Molina on August 23, 2007 12:27 PM ET

[JURIST] Japan's national bar association Thursday criticized the execution of three death row inmates and called for a moratorium on the death penalty [press release, in Japanese] until new safeguards can be enacted to prevent wrongful executions based on dubious evidence. The Federation of Bar Associations [group website] said that flaws in the justice system create a high risk for condemning innocent lives, pointing to a history of death row inmates who were later exonerated. Japanese courts rely heavily on confessions, often obtained by police after prolonged interrogations, sometimes lasting up to 23 days, or after beating or intimidating the suspect, according to a July 2006 report [text] from Amnesty International. Bloomberg has more.

Earlier this week, US use of the death penalty [JURIST news archive] drew criticism as Texas executed its 400th inmate [AP report] since the US Supreme Court reinstated the death penalty in 1976. The European Union urged Texas Gov. Rick Perry to halt all executions in the state, but he rejected a moratorium [JURIST reports], saying that Texans have decided that "the death penalty is a just and appropriate punishment for the most horrible crimes committed against our citizens."

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Controversial DOJ official resigns from Executive Office of US Attorneys
Leslie Schulman on August 23, 2007 11:51 AM ET

[JURIST] Former US Attorney Bradley Schlozman [official profile], alleged to have improperly influenced decisions to prosecute voter fraud, has resigned his post in the Executive Office of US Attorneys at the Department of Justice (DOJ) [official website], DOJ spokesman Brian Roehrkasse said Wednesday. Schlozman, who previously had served as acting chief of the DOJ Civil Rights Division [official website], was US Attorney for the Western District of Missouri following the resignation of Todd P. Graves [firm profile] last year. Graves was fired when he refused to endorse a 2005 voter fraud lawsuit that Schlozman filed against Missouri. Graves told reporters [JURIST report] in May that he was forced to resign after political clashes with the DOJ in 2006. Allegations [Globe report] have been made that Schlozman played a key role in a Republican scheme to stir up fears of voter fraud days before the 2006 elections to encourage support for a voter identification law. The Senate Judiciary Committee [official website] has since expanded its investigation of the US Attorney firings to include the dismissal of Graves and a possible link to voter fraud prosecutions.

Schlozman is the latest DOJ official to resign amid allegations that the 2006 firings of at least nine US Attorneys [JURIST news archive] were politically motivated. He testified in front of the Senate Judiciary Committee that his role in the alleged voter fraud scare was minimal and that he merely supported approval of a Georgia law requiring all voters to show photo identification [JURIST news archive]. The law was later ruled unconstitutional, but in June 2007, the Georgia Supreme Court dismissed a challenge to the law for lack of standing [JURIST report]. McClatchy Newspapers has more.

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Bolivia judiciary dispute escalates into legislative brawl
Leslie Schulman on August 23, 2007 11:04 AM ET

[JURIST] A fistfight broke out between lawmakers in the Bolivian legislature [official site, in Spanish] Wednesday as opposition leaders tried to prevent lawmakers loyal to Bolivian President Evo Morales [official website, in Spanish; BBC profile] from bringing charges against four Constitutional Tribunal justices for overstepping their authority. The dispute, the latest in a series of disagreements between Morales' Movement Toward Socialism (MAS) [party website, in Spanish; Wikipedia backgrounder] and opposition lawmakers, stems from Morales' appointment of four magistrates during a congressional recess in December. Opposition leaders appealed to the Bolivian Constitutional Tribunal [official website, in Spanish], which then suspended the judges, ruling that they could only serve 90 days unless Congress confirmed their appointment. Congress voted to grant approval last month, but Morales has urged that charges be filed against the Constitutional Tribunal justices who issued the suspensions in May. Lawmakers voted to press charges against four justices, all but suspending them. AP has more.

Last year, Morales' leftist party and opposition leaders clashed [JURIST report] over constitutional reform, with Morales backing a full rewrite of the country's constitution. Morales, the country's first indigenous president, was elected [JURIST report] in 2005 after weeks of protests from leftists demanding constitutional changes, and has promised widespread social change. The constitutional assembly was expected to introduce the new constitution earlier this month, but was granted a extension until December after being unable to meet the August deadline.

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Pakistan high court says ex-PM can return from exile
Jeannie Shawl on August 23, 2007 10:57 AM ET

[JURIST] The Supreme Court of Pakistan [official website] ruled Thursday that former Pakistani Prime Minister Nawaz Sharif [BBC profile] can return to the country, effectively ending the 10-year exile imposed after Sharif was deposed in a military coup led by current Pakistani President Gen. Pervez Musharraf [BBC profile]. In its order [text], the court wrote:

It is declared that Mian Muhammad Nawaz Sharif and Mian Muhammad Shahbaz Sharif, under Article 15 of the Constitution of Islamic Republic of Pakistan, 1973 have an inalienable right to enter and remain in country, as citizens of Pakistan. Their such return/entry into country shall not be restrained, hampered or obstructed by the Federal or Provincial Government Agencies, in any manner.
The government argued that the former prime minister and his brother, Shahbaz, went into exile in exchange for the government dropping corruption charges against them, but Sharif has denied such a deal.

Earlier this month, the Pakistani high court ruled that prosecutors could reopen the corruption case against Sharif [JURIST report]. Legal observers have said that the move to reopen the case was a preemptive measure in case the court ruled that Sharif had the right to return to the country. If Sharif returns while the corruption case is pending, he could be arrested. Speaking after the court's ruling Thursday, Sharif said that he will return to Pakistan soon and will challenge Musharraf's bid for re-election later this year. AP has more. BBC News has additional coverage.

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Rights groups urge Nepal to revise draft law on truth and reconciliation panel
Jeannie Shawl on August 23, 2007 10:38 AM ET

[JURIST] Nepal's draft Truth and Reconciliation Commission Bill of 2007 does not meet international legal standards [press release] as currently drafted, Human Rights Watch and the International Commission for Jurists [advocacy websites] said Wednesday. The groups called the bill "seriously flawed" and said that it does not meet standards set forth in the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights [text]. According to HRW and the ICJ:

The commission's proposed mandate would not address serious violations of international humanitarian law. The draft bill also fails to clarify that the terms "gross violation of human rights" and "crimes against humanity" must be defined and applied in a manner that meets international standards.

In the draft bill, amnesties could be granted even for gross human rights violations if these acts had a political motivation, if the perpetrator made an application indicating regret, or if victims and perpetrators agree to a reconciliation process. Such a mechanism could result in protection from criminal prosecution for even the gravest of crimes. ...

While the proposed draft states that amnesty will not be provided to any person involved in "murder committed after taking under control or carried out in an inhuman manner; inhuman and cruel torture; rape," the vagueness of these terms creates leeway for amnesties for those responsible for murder or torture that the commission defines as not inhuman or cruel. Clearly defined terminology that is internationally accepted, such as "torture and other cruel, inhuman or degrading treatment or punishment," should be used.

Under the draft bill, the Truth and Reconciliation Commission could not even consider any case already decided or being decided before a court in accordance with existing laws. The bill excludes from the commission's mandate all cases of crimes under international law and other human rights violations in respect of which victims and their families had previously sought a remedy before the courts, whether or not an effective remedy was obtained. Protection against double jeopardy is crucial, but the overbroad scope of exclusion could result in denying justice to those who have already been denied it once in the court system.

The commission should have the power to express views on the need for judicial review of cases heard in the courts. Nepal has an obligation under international law to ensure measures adopted do not lead to impunity or constitute an impediment to bringing perpetrators to justice.
HRW and the ICJ also expressed concern that the proposed Truth and Reconciliation Commission would not be sufficiently independent from the government, saying that "Though the draft bill states the commission will operate in an independent and impartial manner, it contains numerous provisions which could undermine these principles." The groups urged the government of Nepal to:
  • Ensure open and meaningful consultation is carried out with civil society and victims in the drafting process;
  • Clarify that the terms "gross violation of human rights" and "crimes against humanity" are to be applied in accordance with international legal practice to ensure that any serious infringement of Nepal's international human rights obligations is duly investigated and that no acts that adversely affected civilians during the conflict are left out of the scope of the bill;
  • Introduce transparent appointment procedures, such as public hearings of the commissioners to ensure the independence and impartiality of the commission;
  • Respect international human rights standards with respect to granting of amnesties for serious crimes. Section 25(2) of the bill must be amended to exclude recommendations for amnesty for crimes under international law such as crimes against humanity, war crimes, and gross human rights violations in general such as extrajudicial killings, enforced disappearances and torture;
  • Guarantee reparation to all victims of human rights violations;
  • Ensure that the preamble, which incorporates the objectives of the commission, should include objectives that fulfill Nepal's treaty obligations. These would include provisions to bring justice to victims and establish a historical and accurate record of incidents.
  • The UN Office of the High Commissioner for Human Rights has also raised concerns about the bill [press release, PDF], saying earlier this month that:
    OHCHR-Nepal is deeply concerned about provisions which would amnesty the perpetrators of gross human rights violations and violations of international humanitarian law (IHL), including extrajudicial execution, torture and disappearances. Amnesty provisions which prevent prosecution for these offences are inconsistent with Nepal's obligations under international law. ...

    Among the other main concerns regarding the bill is the lack of safeguards regarding the independence, impartiality and diversity of the Commission, both in relation to the selection of commissioners and in relation to operational and financial matters. According to the bill, the commissioners will be selected by a government-appointed body that may consist of political actors, rather than a diverse group that is representative of society. At the same time, there are no provisions to ensure diversity based on ethnicity, gender, caste, geographic region and religion.
    The draft Nepalese law would establish a seven-member commission to investigate human rights and crimes against humanity committed during the armed conflict in Nepal [JURIST news archive] between 1996 and 2006. The panel would be tasked with making recommendations to the government concerning reconciliation, prosecutions, amnesty and reparations. Bloomberg has more.

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    New Jersey AG orders stricter reporting of illegal immigrant arrests
    Leslie Schulman on August 23, 2007 10:22 AM ET

    [JURIST] New Jersey Attorney General Anne Milgram [official profile] issued a directive [PDF text] Wednesday to state law enforcement agencies ordering them to alert US Immigration and Customs Enforcement (ICE) [official website] officials when an undocumented immigrant is arrested in the state. Milgram wrote that:

    After an individual has been arrested for a serious violation of State criminal law, the individual's immigration status is relevant to his or her ties to the community, the likelihood that he or she will appear at future court proceedings to answer State law charges, and the interest of the federal government in considering immigration enforcement proceedings against an individual whom the State has arrested for commission of a serious criminal offense.
    Milgram stipulated that state police officers could only inquire into the immigration status of any person arrested for an indictable offense or for driving while intoxicated.

    The directive, which takes effect immediately, comes after a triple murder in Newark earlier this month of three college students. One of the six suspects in the killings was an illegal immigrant who was out on bail for charges of child rape and aggravated assault without notification of federal immigration officers. In addition to Milgram's swift response, New Jersey Sen. Shirley Turner (D) [official website] on Wednesday proposed legislation [news release] that would require undocumented immigrants to post full cash bail when charged with a crime in New Jersey. Currently, illegal immigrants are subject to the same bond reductions as US citizens. AP has more.

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    Zimbabwe human rights violations abuses nearing record numbers: group
    Jeannie Shawl on August 23, 2007 9:26 AM ET

    [JURIST] A coalition of human rights groups in Zimbabwe [JURIST news archive] said Wednesday that if human rights abuses continue to occur in Zimbabwe at the high pace they have in the first half of the year, 2007 will be the worst year on record since the country entered an economic decline seven years ago. The Zimbabwe Human Rights Forum [official website] said that there has been a general trend of increasing rights violations since 2005, but if the number of violations committed in the first half of 2007 [JURIST report] continue at the same levels, "2007 will be the worst year yet by a considerable margin."

    Human Rights Forum reported earlier this month that there were over 5,300 recorded cases of human rights abuses during the first six months of the year, including 328 instances of torture, 481 assaults, 802 cases of illegal arrests or detention, and 935 cases of politically related abuses by government authorities or militants supporting Zimbabwean President Robert Mugabe [BBC profile]. A police spokesperson rejected the group's latest report Wednesday, saying that the results were inaccurate and distorted. AP has more.

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    For more legal news check the Paper Chase Archive...


    Unprecedented Notice of Warrantless Wiretapping in a Closed Case
    Ramzi Kassem
    CUNY School of Law

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