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Legal news from Tuesday, June 16, 2009

China ready to substitute lethal injections for gunshot executions: report
Jaclyn Belczyk on June 16, 2009 2:47 PM ET

[JURIST] Chinese state media reported Tuesday that Beijing is ready to switch from gunshot executions [China Daily report] of condemned prisoners to lethal injections [JURIST news archive]. A spokesperson for the Supreme People's Court (SPC) [official website, in Chinese] said that lethal injection is "cleaner, safer, and more convenient." China Daily reports that a facility has been prepared and that judicial police and medical staff will soon be trained to administer the procedure. Beijing expects to transition fully to lethal injections by the end of the year, but the transition will take longer in other parts of the country. Lethal injections have been permitted in China since 1997, but have rarely been used before now.

The SPC announced plans to phase out gunshot executions [JURIST report] and switch to lethal injections in January 2008. China executes more prisoners than any other country. In March, Amnesty International (AI) [advocacy website] reported that China conducted 1,718 executions [JURIST report], or 72 percent of executions worldwide, in 2008. Although an SPC spokesperson said in 2007 that death sentences in China had hit a 10-year low [JURIST report] in 2006, AI reported [press release] in April 2007 that China continued to lead the world in executions, with 7,000 to 8,000 people believed to have been executed in 2006. In response to wrongful convictions and international criticism, China implemented reforms at the beginning of 2007 requiring that all death sentences be approved [JURIST reports] by the SPC.

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UK urged to reform war crimes prosecution laws
Christian Ehret on June 16, 2009 2:20 PM ET

[JURIST] War crimes suspects entering or residing in the UK are often immune from prosecution for their acts, according to a report [text, PDF] released Monday by Aegis Trust [advocacy website]. The report refers to a "significant number" of alleged war criminals and perpetrators of genocide in the UK that hail from Rwanda, Sierra Leone, Sri Lanka, Iraq, Zimbabwe, Sudan, the Democratic Republic of Congo, Afghanistan, and the former Yugoslavia. According to the report, these suspected criminals often escape prosecution because such crimes cannot be tried in the UK if committed before 2001 or if the perpetrator is not a UK resident. The report argues that these policies conflict with UK laws concerning crimes committed during international armed conflicts and laws in the US and Canada, which allow for jurisdiction over such crimes based on presence in the country rather than on residence. The report proposes to "strengthen UK law" by amending the International Criminal Court Act 2001 [text] to allow jurisdiction over anyone who is present in the UK and to allow war crimes to be prosecuted regardless of when they were committed. Removing the current 2001 statutory bar would allow for the prosecution of those suspected of involvement in the 1994 Rwandan genocide [HRW backgrounder]. Although the government's position remains unclear, members of Parliament have been considering similar amendments [Aegis press release] to the law with sufficient support. The report addresses the implementation of the new policies:

These reforms will not make the UK a global prosecutor. The suspect will need to be present in the UK, the Director of Public Prosecutions and Attorney General will retain their role in assessing the strength of the evidence and whether or not proceedings are in the public interest, and there are no proposals to remove head of state or diplomatic immunities.

While the report acknowledges that transferring suspects to the International Criminal Court (ICC) [official website] or other international tribunals may be preferable, it maintains that such transfers are often not possible. The international criminal tribunals for Rwanda and the former Yugoslavia [official websites] are coming to an end and the ICC may not have the capacity to take all of the UK cases, resulting in prosecuting only high-profile suspects.

Other countries have also struggled with establishing procedures to prosecute war criminals. Kenya is supposed to establish a tribunal to try perpetrators of the 2007 post-election violence [JURIST reports] by August, as mandated by former UN secretary-general Kofi Annan. In May, Canada convicted [JURIST report; judgment, DOC] Rwandan Hutu Desire Munyaneza [Trial Watch profile], the first person tried under their Crimes Against Humanity and War Crimes Act [text, PDF], for genocide, crimes against humanity, and war crimes. The Canadian legislation was ratified to fulfill the country's obligations to the ICC. In April, the government of Bangladesh said that it was working with the UN to organize war crimes prosecutions [JURIST report] arising out of the country's 1971 War of Independence [GlobalSecurity backgrounder] against Pakistan and considering trying the cases in the ICC.

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Real ID Act reform legislation introduced in Senate
Christian Ehret on June 16, 2009 12:10 PM ET

[JURIST] US Senator Daniel Akaka (D-HI) [official website] introduced a bill [S 1261 materials; press release] Monday to reform the 2005 Real ID Act [text, PDF; JURIST news archive] and enhance the security of driver's licenses. The Providing for Additional Security in States' Identification Act of 2009 (PASS ID) seeks to implement recommendations from the 9/11 commission concerning standards for the issuance of personal identification and would replace provisions of the Real ID Act with legislation that lessens the burdens on states. The Real ID Act mandates that states issue a federally-approved form of identification, which would become part of a national database and be required for airline travel. Signed into law by former president George W. Bush, the Real ID Act has been opposed by state governments and the American Civil Liberties Union (ACLU) [advocacy website] as being too invasive and too expensive to implement. PASS ID attempts to improve the existing legislation by requiring security measures to protect the private information collected and establishes a grant program to defray the states' costs. With these and other improvements, the new bill seeks to significantly reduce the compliance costs of states and allows for more flexibility in satisfying the mandates. Secretary of Homeland Security Janet Napolitano [official profile] has previously expressed an interest in repealing [press release] the Real ID Act and substituting it with something more practical to implement. Legislation that works against the Real ID Act in some way has been passed by 23 states, and 13 states have enacted measures that completely prohibit participation in the program. ACLU Technology and Liberty Program [advocacy website] counsel Chris Calabrese acknowledged the efforts to improve the Real ID Act but remained opposed [press release] to any action that would revive it, including the PASS ID bill, maintaining that the existing legislation cannot be "fixed." Calabrese expressed concerns about the new legislation causing hardships for legal immigrants and endangering the privacy and safety of victims of domestic violence.

Initially drafted after the 9/11 attacks and designed to discourage illegal immigration, the Real ID Act attempts to make it more difficult for terrorists to fraudulently obtain US driver's licenses and other government IDs by mandating that states require birth certificates or similar documentation and also consult national immigration databases before issuing IDs. After controversy and opposition, the bill finally passed in 2005 [JURIST report] as part of an emergency supplemental appropriations defense spending bill. The US Department of Homeland Security extended the compliance deadlines [JURIST report] in April 2008 following state opposition to the bill.

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Kenya prosecutors charge suspected Somali pirates captured by US
Jaclyn Belczyk on June 16, 2009 12:01 PM ET

[JURIST] Kenyan prosecutors have charged 17 Somalis with piracy [JURIST news archive]. The men, arrested by US Naval forces in the Gulf of Aden in May, were turned over to the Kenyan authorities [Reuters report] last Wednesday and charged [AP report] Thursday. Also last week, the Swedish Navy turned over seven [AFP report] suspected Somali pirates to Kenyan authorities. The European Union (EU) [official website] and Kenya have reached an agreement [EU press release, PDF; JURIST report] that allows EU navies to apprehend alleged pirates and turn them over to Kenyan authorities for prosecution. There is a similar agreement [Reuters report] between the US and Kenya. Kenya now holds more than 100 alleged pirates from Somalia.

Last month, officials from the G8 countries [BBC backgrounder] agreed to work toward establishing a system for trying pirates [JURIST report] captured in African waters. Also in May, the UN Office on Drugs and Crime [official website] obtained Kenyan support [VOA report] to launch a new plan to combat piracy by policing Horn of Africa waters. In April, Kenyan authorities brought charges [JURIST report] against 18 Somali nationals who were captured by German and French forces over the previous two months.

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Peru government to seek repeal of controversial indigenous land laws
Jaclyn Belczyk on June 16, 2009 11:07 AM ET

[JURIST] Peruvian Prime Minister Yehude Simon [official profile, in Spanish] announced Monday that the Executive Branch would ask the Peruvian Congress [official website, in Spanish] to repeal controversial land laws [Andina report, in Spanish] that led to indigenous protests and violent clashes last week when police attempted to disperse groups blocking access routes. Last week, the congress temporarily suspended legislative decree 1090, the Forest and Wild Fauna Law [text, PDF, in Spanish] and legislative decree 1064, establishing the legal framework for agricultural land usage [text, PDF, in Spanish] in the wake of the protests. Peru's largest indigenous organization, the Interethnic Association for the Development of the Peruvian Jungle (AIDESEP) [advocacy website], was excluded from Monday's negotiations, but will participate in talks beginning Tuesday. Also Monday, the Peruvian government signed a 12-point memorandum of understanding [Andina report, in Spanish] with indigenous groups promising to submit a proposal for repealing the laws to the congress by Thursday.

Peruvian President Alan Garcia [official website, in Spanish] decreed the controversial laws under powers to implement a free trade agreement with the US. The laws would open Amazon land to development by international companies. Simon maintained Tuesday that the repeal of the laws would not harm a Peruvian-US free trade agreement [Andina report, in Spanish]. In November 2008, Simon declared a state of emergency [JURIST news report] when violence broke out amidst indigenous protests over a new law reducing revenue to the province from local mining operations. In August 2008, protests over a controversial law [JURIST report] that reduced the majority by which a tribe must agree to sell communal land to oil and natural gas companies led the Peruvian government to declare a state of emergency over widespread indigenous protests.

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Russia judicial reform essential: Khodorkovsky
Christian Ehret on June 16, 2009 10:07 AM ET

[JURIST] Former oil executive Mikhail Khodorkovsky [defense website; JURIST news archive] called for a reform of Russia's court system in an article [text, in Russian] published Monday in the weekly magazine Kommersant Vlast [media website, in Russian]. The jailed former Yukos [JURIST news archive] chief executive said that putting an end to corruption and political pressure should be a governmental priority and is crucial for Russia's future. Khodorkovsky argued that, without preventative judicial reform, there will be no true democracy or liberalization in Russia since the rights of citizens depends on their ability to complain about an infringement of their rights and freedoms and "count on an unbiased verdict." Legislative reforms will not work without an independent court to stop the violation or improper application of such laws, he argued. Advocating for reform, Khodorkovsky described the current judicial system as being composed of a "special department of the executive branch" and "a conglomerate of special units of large and medium corporations." Such a system, Khodorkovsky said, has previously failed because government officials and the elite do not want a fully independent "third power" but rather want a system that will "fulfill their direct or indirect instructions" or respond to bribes. Khodorkovsky connected past problems with instituting democracy in Russia with a lack of a tribunal that gives equal chances to "master and servant," and "the State and its subjects."

Earlier this month, the Moscow City Court rejected [JURIST report] Khodorkovsky's appeals concerning embezzlement, oil theft, and money laundering charges. In March, Khodorkovsky criticized Russian trials [JURIST report] as being restricted and resulting in hopeless situations for those accused who choose not to plead guilty. In April, Moscow's Khamovniki Borough Court refused [RIA Novosti report] to refer the case back to prosecutors after the Khodorkovsky and his business partner Platon Lebedev [defense website] both pleaded not guilty [JURIST report] to the additional charges of money laundering and embezzlement. Their lawyers also challenged [RIA Novosti report] the charges on grounds of insufficient evidence and technical errors. Khodorkovsky and Lebedev were initially convicted and jailed [JURIST report] in 2005 on fraud and tax evasion charges stemming from an alleged attempt to embezzle and strip Yukos of valuable assets. They are currently serving an eight-year prison sentence and could face up to 20 additional years if convicted on the current charges.

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CIA releases documents describing Guantanamo detainee torture, abuse
Christian Ehret on June 16, 2009 8:26 AM ET

[JURIST] The Central Intelligence Agency (CIA) [official website] on Monday released redacted documents that describe the alleged torture and abuse of Guantanamo Bay detainees in CIA custody, transcribed from Combatant Status Review Tribunal [JURIST news archives] hearings. The documents, released pursuant to a Freedom of Information Act (FOIA) [text] lawsuit [complaint, PDF; JURIST report] brought by the American Civil Liberties Union (ACLU) [advocacy website], concern detainees Khalid Sheikh Mohammed, Majid Khan, Abd al-Rahimal al-Nashiri, and Abu Zubaydah [transcripts, PDF]. Although they are still considerably redacted, the transcripts contain new information that was not made available in previously released versions. In his testimony, Mohammed, the self-proclaimed architect of the 9/11 attacks, told the tribunal that he lied to the CIA after being tortured during questioning. Khan maintained that any information the tribunal obtained from him was obtained through "agencies who physically and mentally tortured" him. Suspected USS Cole bomber al-Nashiri told the tribunal that investigators used to drown him in water to get him to admit to untrue allegations, a likely reference to waterboarding [JURIST news archive]. Zubaydah described months of physical and mental torture during which he almost died that resulted in injuries to his eye, stomach, bladder, and reproductive organs. The tribunals were held to determine if the detainees qualified as "enemy combatants." ACLU lawyer Ben Wizer, who led the FOIA suit, addressed the release of the documents [press release] and the need for non-redacted versions of them:

The documents released today provide further evidence of brutal torture and abuse in the CIA's interrogation program and demonstrate beyond doubt that this information has been suppressed solely to avoid embarrassment and growing demands for accountability. There is no legitimate basis for the Obama administration's continued refusal to disclose allegations of detainee abuse, and we will return to court to seek the full release of these documents.

Director of the ACLU National Security Project [official website] Jameel Jaffer urged the US government to "make good on its commitment to transparency" by holding officials accountable and stopping the suppression of information regarding torture and abuse.

Last week, a federal judge allowed a torture lawsuit [JURIST report] to proceed against former Bush administration lawyer John Yoo [academic profile; JURIST news archive]. The suit against Yoo alleged that the legal scholar endorsed enhanced interrogation techniques [JURIST news archive] that led to torture and was the first time a judge has allowed a suit to proceed against a government lawyer for involvement in the interrogation memos [JURIST report], also released as the result of a FOIA request by the ACLU. Last month, a number of organizations called for the drafters of the memos to be disbarred [JURIST report]. Also in May, former JFK speechwriter Ted Sorensen told [JURIST report] an audience at the University of Nebraska College of Law [academic website] that the lawyers from the Department of Justice (DOJ) [official website] who had authorized the use of enhanced interrogation techniques had "disgraced not only their country but their profession." In April, Senator Patrick Leahy (D-VT) [official profile; JURIST news archive], Chairman of the Senate Judiciary Committee [official website] renewed his call [JURIST report] for the formation of a non-partisan "truth commission" to investigate torture allegations. Also in April, UN special rapporteur on torture Manfred Nowak [official profile, DOC] insisted that under international law the US must prosecute [JURIST report] DOJ lawyers who drafted the memos. President Barack Obama has said that he would not rule out the possibility of prosecuting [transcript; JURIST report] lawyers who authored the memos.

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Iran to conduct partial recount after leader orders probe into vote fraud
Jay Carmella on June 16, 2009 7:53 AM ET

[JURIST] Iran's Guardian Council of the Constitution [official website; in Persian] said Tuesday that it would conduct a partial recount of disputed presidential election results [BBC backgrounder] after the country's spiritual leader and highest authority, Ayatollah Ali Khamenei [official profile; BBC profile] ordered an investigation on Monday into allegations of voter fraud. Khamenei's order came after protests took place [AP report] throughout the country following last weekend's announcement of a victory by President Mahmoud Ahmadinejad [BBC profile; JURIST news archive] over reform candidate Mir Hossein Mousavi [IranTracker profile]. It is likely that an investigation, which would be conducted by the Guardian Council, is an attempt by the supreme leader to reduce the violence that has erupted within the country. Iranian state radio reported that seven people were killed [BBC report] in a violent protest Monday, and Mousavi has called for Tuesday protests to be canceled to avoid further altercations.

Ahmadinejad, who has been president of Iran since 2005, has been a controversial figure. In April, delegates to the UN Durban Review Conference on Racism [official website] walked out [JURIST report] of a speech [text, PDF] by Ahmadinejad after he described Israel as "totally racist." Last June, a division of the Iranian Ministry of Culture and Islamic Guidance [official website, in Persian] revoked the license [JURIST report] of Iranian daily newspaper Tehran Emrouz [official website, in Persian] for printing articles that criticized the policies of Ahmadinejad. Allegations of fraud [JURIST report] also surrounded Ahmadinejad's 2005 election victory.

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Ninth Circuit rules Exxon Mobil owes interest on oil spill verdict
Jay Carmella on June 16, 2009 6:41 AM ET

[JURIST] The US Court of Appeals for the Ninth Circuit [official website] ruled [opinion, PDF] Monday that Exxon Mobil [corporate website] owes interest on the more than $500 million in punitive damages awarded against it following the 1989 Exxon Valdez oil spill [EPA backgrounder; JURIST news archive]. The court found that the interest began accumulating following the original 1996 verdict in the plaintiffs' favor. The court said:

We therefore conclude that plaintiffs' entitlement to punitives was "meaningfully ascertained" when the original district court judgment was entered in 1996. Neither the evidentiary basis for the award nor the legal foundation for an award has been disturbed after nearly a dozen years of subsequent litigation. We see no reason to depart from Planned Parenthood's general rule in this case. The plaintiffs are entitled to interest from that date on the principal amount they ultimately are entitled to receive, $507.5 million.

The court estimated the interest costs to be close to $70 million. It is hoped that the ruling will finally conclude long legal battle following the massive oil spill.

Last August, the US Supreme Court [official website; JURIST news archive] declined to rule [JURIST report] on whether Exxon Mobil owed interest on the punitive damages award, thus remanding it to the Ninth Circuit. In June 2008, the Supreme Court ruled 5-3 [JURIST report] to reduce a punitive damages award to be paid by Exxon from $2.5 billion to $500 million, but did not rule on the issue of interest. In December 2006, the Ninth Circuit reduced [JURIST report] Exxon's original $5 billion punitive damage award by more than $2 billion, ruling that the award was excessive in light of a 2003 Supreme Court ruling that punitive damages must be reasonable and proportionate to the harm incurred, and also considering Exxon's cleanup and compensation efforts.

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ICC orders Congo rebel leader Bemba to stand trial for crimes against humanity
Eszter Bardi on June 16, 2009 5:56 AM ET

[JURIST] The International Criminal Court (ICC) [official website] on Monday ordered [text, PDF] former Democratic Republic of Congo (DCR) [BBC backgrounder] rebel leader Jean Pierre Bemba [ICC materials; JURIST news archive] to stand trial for the alleged commission of violent war crimes. The prosecution contends that Bemba's actions in the Central African Republic (CAR) [BBC backgrounder] as military leader of the Congo Liberation Movement (MLC) [party website, in French] from October 2002 to May 2003 amount to war crimes and crimes against humanity. Although the pre-trial ruling ordered Bemba to face prosecution for various rape, murder, and pillaging charges under sections 7 and 8 of the Rome Statute [text], he was not found criminally responsible for allegedly acting as a co-perpetrator with former CAR president Ange-Felix Patasse [NYT backgrounder] in the commission of other counts of crimes against humanity as well as torture charges. Bemba's counsel argued [Reuters report] that he should not be held responsible for any of the charges since he was acting on behalf of Patasse with respect to all of his actions as military leader of the MLC.

Bemba was arrested [JURIST report] in Belgium after the ICC issued a warrant for his arrest in May 2008 for his actions in the CAR. He was indicted on charges of war crimes and crimes against humanity and transferred [JURIST report] to the ICC in July 2008. The proceedings against Bemba were initially postponed, but the pre-trial hearing [JURIST reports] to determine what charges the rebel leader is to face commenced in January. Bemba was elected to the Congolese Senate after losing a run-off presidential election [JURIST report] to Joseph Kabila [BBC profile], who, in December 2006, became the first freely-elected president of the DRC since 1960. After the election, Bemba's private militia force led a violent campaign against government troops until the DRC Supreme Court rejected his election challenge [JURIST report].

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Unprecedented Notice of Warrantless Wiretapping in a Closed Case
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