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Legal news from Monday, October 19, 2009




Honduras interim government officially relaxes restrictions on protests
Hillary Stemple on October 19, 2009 2:03 PM ET

[JURIST] The Honduran interim government officially eased restrictions on protests and opposition media Monday, two weeks after acting-president Roberto Micheletti [BBC profile] promised to repeal [JURIST report] the executive decree [text, Spanish] issued in September suspending several constitutional rights. The decree suspended five articles of the Honduran Constitution [text] and was issued in response to protests being organized in support of deposed president Manuel Zelaya [BBC profile, JURIST news archive]. The National Telecommunications Commission [official website, in Spanish] was authorized by the decree to suspend any media outlet whose actions were deemed detrimental to peace and public order. Radio Globo [media website, in Spanish] and television Channel 36, outlets allegedly supporting Zelaya, were taken off the air in September and have not yet resumed production [Reuters report]. Micheletti convened his council of ministers to repeal the decree earlier this month, but the repeal did not take effect until being published in the official gazette Monday.

A delegation from the Organization of American States (OAS) [official website] arrived in Honduras Sunday to investigate human rights violations that may have occurred since Zelaya was removed from office [JURIST reports] in June following a judicial order [La Prensa report, in Spanish] issued by the Honduran Supreme Court. The order was issued when Zelaya tried to carry out a nationwide referendum on constitutional reform, despite the Supreme Court ruling against it. In August, Spanish National Court Judge Baltasar Garzon [BBC profile] said during a visit to Honduras that he is gravely concerned by the human rights situation [JURIST report] in the country. Also in August, the Honduran Office of the Prosecutor of Common Crimes indicted 24 Zelaya supporters [JURIST report] on charges of sedition and damaging public property.






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Israel urges international community to reject UN rights council Gaza resolution
Steve Dotterer on October 19, 2009 12:20 PM ET

[JURIST] The Israeli government on Friday rejected [press release] a UN Human Rights Council (UNHRC) resolution [text, PDF; JURIST report] endorsing the final report [JURIST report] of the UN Fact Finding Mission on the Gaza Conflict [official website]. The Israeli Foreign Ministry called the resolution "one-sided" and called on the international community to join Israel in rejecting it, issuing the following statement:


The adoption of this resolution by the UNHRC impairs both the effort to protect human rights in accordance with international law, and the effort to promote peace in the Middle East. This resolution provides encouragement for terrorist organizations worldwide and undermines global peace.

Israel asserts that the resolution, passed by a vote of 25-6, with 11 abstaining, fails to address Hamas violence against Israeli civilians and overlooks measures Israel has adopted to curb Palestinian civilian deaths.

The resolution expresses support for Goldstone Report [text, PDF], which points to the commission of war crimes by both Israel and Hamas during a series of Palestinian-Israeli clashes in late 2008 and early 2009 collectively referred to as Operation Cast Lead [GlobalSecurity backgrounder]. Richard Goldstone presented [JURIST report] the mission's findings to the UNHRC last month. The US has threatened to veto Security Council resolutions that may arise from the matter.





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ICC begins Sudan rebel leader preliminary hearing
Ann Riley on October 19, 2009 12:12 PM ET

[JURIST] The International Criminal Court (ICC) [official website] on Monday commenced the confirmation of charges hearing against Sudanese war crimes suspect and rebel leader Bahr Idriss Abu Garda [case materials], the first suspect to appear before the ICC in regard to the Darfur [JURIST news archive] situation. Abu Garda is accused [press release] of committing war crimes by orchestrating a September 2007 attack [BBC report] against the African Union Mission in Sudan (AMIS) [official website]. The ICC alleges that the Justice and Equality Movement (JEM) [official website], under Abu Garda's command, killed 12 and wounded eight AMIS soldiers. Abu Garda voluntarily appeared in front of the ICC at the opening of the confirmation hearing [recorded video; recorded audio]. The confirmation hearing, at which the prosecutor must establish sufficient evidence for each charge against Abu Garda in order for the case to proceed to trial, is scheduled [text, PDF] to continue until October 29.

Abu Garda first appeared [JURIST report] before the ICC in May to deny responsibility for war crimes committed in Darfur. The court is also pursuing cases against Ahmad Harun, Ali Kushayb [TrialWatch Profiles], and Sudanese President Omar al-Bashir [BBC profile; JURIST news archive]. Al-Bashir is accused of leading the systematic harassment and murder of members of the Fur, Masalit, and Zaghawa ethnic groups under the pretext of counter-insurgency since 2003. The ICC issued an arrest warrant [JURIST report] for al-Bashir in March, charging him with seven counts of war crimes and crimes against humanity. The controversial warrant [JURIST news archive] for his arrest had long been sought by ICC Prosecutor Luis Moreno-Ocampo [official profile], who in July 2008 filed preliminary charges [JURIST report] against al-Bashir alleging genocide, crimes against humanity, and war crimes committed in the Darfur region in violation of Articles 6, 7, and 8 of the Rome Statute [text]. The court had originally refused to charge Bashir with genocide, but prosecutors appealed that decision [JURIST report] in July. This was the first time the ICC had issued an arrest warrant against a sitting head of state.






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DOJ directs prosecutors to end raids on medical marijuana facilities
Patrice Collins on October 19, 2009 12:06 PM ET

[JURIST] The US Department of Justice (DOJ) [official website] issued guidelines Monday directing federal prosecutors to respect state-sanctioned medical marijuana use and distribution, ending raids on facilities complying with state law. The memorandum [text] outlining DOJ priorities concerning illicit trafficking directs prosecutors not to focus on individuals acting in compliance with state medical marijuana laws. Though the DOJ declared its commitment to the Controlled Substances Act [text], the memo states the administration's intention to make "efficient" use of limited federal resources.


For example, prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources

Prosecutors were instructed to focus on enterprises that illegally profit from the sale and distribution of marijuana and individuals who claim compliance with state laws to "mask" illegal consumption. The memo provides prosecutors with a non-exhaustive list of characteristics to help determine when conduct is not in "clear and unambiguous compliance" with state law.

Holder announced plans [JURIST report] to end federal raids on medical marijuana facilities in March. The announcement fulfilled President Barack Obama's campaign pledge [Boston Globe report] to end raids of medical marijuana distributors, routinely practiced by the Drug Enforcement Agency [official website] under the Bush administration. Currently 14 states have legalized medical marijuana for patients suffering from chronic pain and terminal illnesses, with Rhode Island [JURIST report] becoming the latest to do so in June. The Supreme Court's 2005 decision in Gonzales v. Reich [opinion text; JURIST report] upheld Congress's power to criminalize the growth and use of medical marijuana if it so chooses.





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Delaware Catholic diocese bankruptcy filing delays clergy abuse trials
Safiya Boucaud on October 19, 2009 11:01 AM ET

[JURIST] The Catholic Diocese of Wilmington Delaware [diocesan website] on Sunday filed for Chapter 11 federal bankruptcy protection [press release], one day before eight clergy sexual abuse trials were set to begin. The filing will delay the trials, which were scheduled to take place in the Kent County Superior Court. The lawyer representing some of the alleged sexual abuse victims has criticized the move saying that it is an attempt to cover up the scandal. In the press release issued by the diocese, Bishop W. Francis Malooly said:


The Chapter 11 filing is in no way intended to dodge responsibility for past criminal misconduct by clergy – or for mistakes made by Diocesan authorities. Nor does the bankruptcy process enable the Diocese to avoid or minimize its responsibility to victims of abuse. Instead, the Chapter 11 filing will enable the Diocese to meet its obligations head-on and fulfill its responsibility to all victims.

The sexual abuse claims were brought under the Delaware Civil Statute of Limitations for Child Sexual Abuse [text] law that created a two-year window that allows claims to be filed regardless of whether the statute of limitations has expired. Of the more than 100 claims that were filed, four have been settled. Wilmington is the seventh Catholic diocese to file for Chaper 11 bankruptcy protection.

Last December, the Roman Catholic Diocese of Springfield, Massachusetts [diocesan website] announced [JURIST report] that it had settled 59 sexual abuse claims against the church through voluntary arbitration. In August 2008, the Roman Catholic Diocese of Providence [diocesan website] reached a settlement [JURIST report] in four abuse suits. In September 2007, the Catholic Diocese of Pittsburgh [diocesan website] announced [JURIST report] the creation of a $1.25 million fund, and the Catholic Diocese of San Diego [diocesan website] announced an agreement [JURIST report] to pay $198.1 million to settle claims of sexual abuse by their clergy. A Los Angeles Superior Court in July 2007 approved a $660 million settlement [JURIST report] between the Roman Catholic Archdiocese of Los Angeles [diocesan website] and plaintiffs in 508 outstanding clergy sex abuse lawsuits. In January 2007, the Catholic Diocese of Spokane [diocesan website] agreed to settle molestation claims [JURIST report] against its own priests for $48 million as part of its Chapter 11 bankruptcy reorganization plan.





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OAS delegation arrives in Honduras to investigate human rights situation
Jonathan Cohen on October 19, 2009 10:38 AM ET

[JURIST] A delegation from the Organization of American States (OAS) [official website] arrived in Honduras Sunday to investigate human rights violations that may have occurred since the ouster of Manuel Zelaya [BBC profile; JURIST news archive] as president. The investigative team was commissioned by the UN [UN News Centre report] earlier this month, and is set to be in Honduras for three weeks [Tiempo report, in Spanish]. The foreign minister of Honduras stressed [press release] during a press conference last week that the human rights situation in Honduras has continued to deteriorate. The UN Human Rights Council [official website] is to prepare a comprehensive report on the situation after the team's return in November. The Honduran interim government has previously expressed concern that the OAS report would be biased [JURIST report] because OAS has already called the ouster a coup and called for Zelaya's reinstatement

Last month, the de facto interim government issued an executive decree [text, in Spanish] suspending constitutional rights such as personal freedom, freedom of expression, and the requirement of an arrest warrant, but later repealed [JURIST reports] the measure. In August, Spanish National Court Judge Baltasar Garzon [BBC profile] said during a visit to Honduras that he is gravely concerned by the human rights situation [JURIST report] in the country. Also in August, the Honduran Office of the Prosecutor of Common Crimes indicted 24 Zelaya supporters [JURIST report] on charges of sedition and damaging public property. Zelaya was ousted [JURIST report] on June 28 following a judicial order [press release] asserting he had broken Honduran law by attempting to conduct a controversial referendum on constitutional reform [JURIST report] contrary to a Honduran Supreme Court ruling.






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Karadzic asks UN Security Council for trial exemption citing alleged immunity deal
Safiya Boucaud on October 19, 2009 9:51 AM ET

[JURIST] Former Bosnian Serb leader Radovan Karadzic [case materials; JURIST news archive] on Friday asked [notice of request, PDF] the UN Security Council to pass a resolution exempting him from trial based on an alleged immunity agreement reached with former US ambassador to the UN Richard Holbrooke in 1996. Last week, the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) [official website] upheld the trial chamber's dismissal of Karadzic's immunity claim, and set the trial date [JURIST reports] for October 26. Holbrooke has continued to deny the existence of an immunity agreement, and the ICTY has ruled that even if such an agreement existed, it would not exempt Karadzic from trial. This was the second time [JURIST report] the ICTY has rejected Karadzic's claim of immunity. In his letter, Karadzic asserted:

In the face of this evidence, the Appeals Chamber changed course and held that even if I had been reasonable in relying on the apparent authority of Richard Holbrooke to negotiate on behalf of the Security Council, the agreement was not legally binding without a resolution of the Security Council. Of course, it was never my responsibility to obtain such a resolution, and Mr. Holbrooke neglected to do so. ...

Therefore, I respectfully request that the UN Security Council honor the agreement entered into by Mr. Holbrooke by enacting a resolution that I not be prosecuted at the ICTY.
Karadzic also argued that a failure to honor the alleged agreement would set a bad precedent for negotiating with world leaders to end other conflicts.

Karadzic faces 11 charges [amended indictment, PDF], including genocide and murder, for war crimes committed during the 1992-1995 Bosnian war. In June, the ICTY said that Karadzic's trial was expected to conclude in early 2012 [JURIST report]. His trial is planned to be the tribunal's last. Karadzic has twice refused to enter pleas [JURIST report] to 11 charges against him including genocide, murder, persecution, deportation, and "other inhumane acts," for war crimes allegedly committed during the 1992-1995 Bosnian war, including the 1995 Srebrenica massacre [BBC backgrounder; JURIST news archive]. Karadzic was originally indicted [text, PDF] by the ICTY in 1995 but had been in hiding under an assumed identity until his arrest last year [JURIST report].





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