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Legal news from Thursday, March 17, 2011

Peru national first to be arrested under new UK genocide law
Jennie Ryan on March 17, 2011 1:46 PM ET

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[JURIST] A spokesperson for the UK's Metropolitan Police Service [official website] on Thursday confirmed the arrest of a 46-year-old Peruvian national on suspicion of crimes against humanity and torture. He is suspected of involvement with the Shining Path [backgrounder], a Maoist guerilla organization, believed to be responsible for the deaths of thousands in conflicts in Peru. The man, whose name has yet to be released, was arrested [Yorkshire Post report] on Tuesday and is being held while police conduct searches of several addresses in the area linked to him. The man is the first to be arrested under the Coroners and Justice Act 2009 [materials], which allows UK courts to hear cases of genocide, war crimes and crimes against humanity committed by nonresidents between 1991 and 2001.

The change in UK genocide law expanded the jurisdiction of the court to include non-residents who had been involved in crimes against humanity prior to 2001. The Coroners and Justice Act 2009 enlarged the International Criminal Court Act 2001 [text], which only covered the prosecution of non-residents for atrocities that occurred after 2001. The change came after proposals by the UK's official adviser on terrorism, Lord Carlile of Berriew [official profile], and Britain's Justice Secretary Jack Straw [official profile] to expand the power [JURIST report] of British authorities to prosecute non-resident individuals suspected of war crimes.

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US Congress introduces legislation to repeal Defense of Marriage Act
Dan Taglioli on March 17, 2011 1:26 PM ET

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[JURIST] Congressional Democrats on Wednesday introduced legislation [text] to repeal the Defense of Marriage Act (DOMA) [text], the 1996 federal law that defines marriage as a "a legal union between one man and one woman as husband and wife." Companion bills were introduced in both chambers of Congress in an effort to capitalize on growing public support for same-sex marriage. Representatives Jerry Nadler (D-NY), John Conyers (D-MI) and over 100 cosponsors are leading the effort in the House, and Senators Patrick Leahy (D-VT), Dianne Feinstein (D-CA), Kirsten Gillibrand (D-NY) and about twenty cosponsors are promoting the bill in the Senate [official sites]. Five states and the District of Columbia have legalized same-sex marriages. Currently DOMA allows other states to ignore those recognized same-sex marriages, and prevents same-sex couples from receiving federal benefits available to married couples. The proposed legislation would repeal DOMA and formally amend United States Code definition of marriage:
For the purposes of any Federal law in which marital status is a factor, an individual shall be considered married if that individual's marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State.
Rep. Nadler first introduced the repeal legislation, cited as the Respect for Marriage Act, in the House in 2009, but the measure did not receive a vote in committee or on the floor. This is the first time such legislation has been brought in the Senate.

The Congressional action follows February's announcement by the US Department of Justice (DOJ) [official website] that it will no longer defend the constitutionality [JURIST report] of Section 3 of DOMA, which restricts the federal definition of marriage to heterosexual couples, in court cases challenging the provision. The announcement came just one month after the DOJ filed a brief [JURIST report] with the US Court of Appeals for the First Circuit [official website] defending the constitutionality of DOMA. The appeal followed a July ruling [JURIST report] by the US District Court for the District of Massachusetts, which found that Section 3 of DOMA violates both the Equal Protection Clause of the Fifth Amendment and State Sovereignty under the Tenth Amendment [text]. Earlier this month House Speaker John Boehner (R-OH) [official website] announced that he is launching a legal advisory group to defend [JURIST report] DOMA, stating "[t]he constitutionality of this law should be determined by the courts, not by the president unilaterally, and this action by the House will ensure the matter is addressed in a manner consistent with our Constitution."

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EU Kosovo authorities arrest suspected war criminals
Julia Zebley on March 17, 2011 12:45 PM ET

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[JURIST] The European Union Rule of Law Mission in Kosovo (EULEX) [official website] on Wednesday arrested nine suspects [press release], all former members of the Kosovo Liberation Army (KLA), on suspicions of committing war crimes during the 1998-1999 war in Kosovo [BBC backgrounder; JURIST news archive]. Included in the arrest was Fatmir Limaj, a former commander of the KLA and prominent political figure in Kosovo, although he was released the next day. The government [official website] released a statement [Koha Ditore report, in Albanian] in support of the KLA members:
[The] Kosovo Liberation Army and people of Kosovo have developed just war, pure, to respect international norms and standards.The Government of Kosovo considers that any attempt to smear the KLA fighters will fail this time. The Government of Kosovo is satisfied that these allegations will be proven as unfounded and distasteful, because the liberation struggle of the KLA was to defend the country and our people.
Thousands of students also protested the arrests [Kosova Press report, in Albanian] on Thursday, and several government officials made statements decrying the arrests as pandering to Serbia. The KLA was instrumental in beginning the Kosovo war for liberation, by campaigning against the Yugoslav military forces. It disbanded in 1999, with members joining other military organizations or entering political office.

EULEX has been investigating war crimes since December 2008, most recently arresting alleged war criminals [JURIST reports] in May 2010. A case came to trial [JURIST report] in March 2009, resulting in a guilty verdict against a Kosovo Albanian for charges of murder, attempted murder and grievous bodily harm. The trial of two Serbian defendants was derailed [JURIST report] that month by hundreds of Serbian protesters and postponed indefinitely. Recently, the Council of Europe and the UN Security Council [JURIST reports] have considered allegations of organ trafficking by the KLA during the war. Kosovo controversially seceded from Serbia [JURIST report] in February 2008, and its new constitution [text] went into effect [JURIST report] in June.

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Canada Supreme Court to review ban on Muslim veil during testimony
Alexandra Malatesta on March 17, 2011 12:14 PM ET

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[JURIST] The Supreme Court of Canada [official website] has agreed to review a lower court order requiring a Muslim woman to remove her niqab [BBC backgrounder] while testifying. The Court of Appeal for Ontario [official website] in October ruled [JURIST report] that a witness does not have to remove her veil unless the failure to do so will prevent the accused from receiving a fair trial, and should be determined on a case-by-case basis. The case was then remanded to the lower court. The trial began in 2007 after the woman told police that her uncle and cousin had repeatedly sexually assaulted her when she was between the ages of six and ten years old. The trial court required the victim to remove her veil when testifying against her uncle and cousin. The defendants argue that allowing the woman to wear a niqab on the stand obstructs their right to face their accuser. David Butt, the woman's lawyer, responded that an exception should be granted to ensure that victims of sexual assault, specifically Muslim women who practice religious veiling, feel welcomed by the judicial system [CBC Canada News, report].

The wearing of traditional religious clothing in court rooms and other public places has been highly contested in the United States [JURIST report] and around the world. In October, the French Constitutional Council [official website, in French] ruled [JURIST report] that a bill [materials, in French] making it illegal to wear the Islamic burqa [JURIST news archive], niqab or other full face veils in public, conforms with the Constitution. Earlier that month, a Dutch politician suggested that the Netherlands will ban the burqa [JURIST report] as part of the government's plan to form a minority coalition. In August, Austria's conservative Freedom Party [official website, in German] called for a special vote [JURIST report] on whether to ban face veils and the construction of minarets, two of the most visible symbols of the Islamic faith.

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Poland court rules 1981 martial law declaration unconstitutional
Daniel Makosky on March 17, 2011 12:06 PM ET

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[JURIST] Poland's Constitutional Tribunal [official website] on Wednesday ruled that the 1981 declaration of martial law [Polish government backgrounder] violated the country's then-governing constitution [text]. The decision facilitates the restitution process [Dziennik Gazeta report, in Polish] for those harmed while martial law remained in effect by eliminating the need for courts to rule on the declaration's constitutionality on a case-by-case basis. Thousands of restitution claims are expected from victims or their families, including those killed, imprisoned, terminated from their employment or otherwise harmed during the period.

The trial of former Polish leader General Wojciech Jaruzelski [JURIST news archive], charged with "organizing crimes of a military nature," deprivation of freedom through internment, and other offenses in connection with the martial law declaration, resumed [Polskie Radio report] last month after originally commencing [JURIST report] in 2008. Jaruzelski was previously tried for ordering troops to fire on striking ship workers [BBC report] in the 1970s, but that trial ended without a verdict. The prosecutions were part of a plan for "moral renewal" [WP report] pushed by then-president Lech Kaczynski and his brother, former prime minister Jaroslaw Kaczynski. About 100 people are said to have died as a result of the martial law declaration and the subsequent arrests of Solidarity leaders, including Lech Walesa [BBC profile], and some 10,000 people were held in internment camps.

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Wisconsin lawmakers accused of breaking open meetings law
Daniel Richey on March 17, 2011 10:46 AM ET

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[JURIST] Republicans in the Wisconsin state legislature broke several state laws when they passed last month's controversial budget bill, charges Dane County District Attorney Ismael Ozanne (D) [official website] in a complaint [PDF] filed Tuesday in a Wisconsin circuit court [official website]. Ozanne alleges the February 25 special session that enacted the Budget Repair Bill, or Senate Bill 11 [text, PDF], which strips public unions of the vast majority of their collective bargaining rights, was conducted in violation of Wisconsin's Open Meetings Law [Wis. Stat. § 19.81-19.98]. The law represents the codification of two provisions of the Wisconsin Constitution [text, PDF], which require that "[t]he right of the people to peacably assemble, to consult for the common good, and to petition the government, or any department thereof, shall never be abridged," [Article I § 4] and that "[t]he doors of each house shall be kept open except when the public welfare shall require secrecy." [Article IV, § 10]. The complaint also alleges that the meeting was held in violation of Joint Rule 3 of the Wisconsin Legislature [text], which sets minimum procedural standards for calling a roll call vote. According to the complaint:
No Joint Rule of the Wisconsin Legislature establishes a different procedure for providing public notice and public access to the meeting of the Joint Committee of Conference on January 2011 Special Assembly Bill 11 than is required by Wisconsin's Open Meetings Law.... The public notice for said meeting was insufficient as to reasonably likely apprise the public and the news media that the Joint Committee of Conference would consider, discuss, debate and act on a new version of of [the] Bill ... which had not been previously passed by the Senate[.]
Ozanne has asked the court to invalidate the law and forbid the secretary of state from publishing it. He also asks for a fine of $300 on each of the Republican legislators involved in the passage of the bill.

Oznne is the second public official to mount a legal challenge to the bill, following a suit filed by Dane County Executive Kathleen Falk (D) [official biography] filed a similar suit last week [MWJS report; complaint, PDF]. Falk's suit came immediately after Wisconsin Governor Scott Walker (R) [official website] signed the bill into law last week [JURIST report]. The provisions limiting bargaining rights incensed unions and their supporters, sparking protests which have been ongoing since February 15, when SB 11 was introduced to address the state's $3.6 billion deficit. Earlier this month, a Wisconsin judge ruled that the state capitol building must remain open [JURIST report] to the public during business hours, despite an attempt to close the building to protesters who had occupied it as part of a protest against the proposed restrictions on collective bargaining. The Wisconsin State Employees Union Council 24 (WSUE) [advocacy website] filed the petition earlier in the day in reaction to Walker ordering the capitol building closed and removing protesters.

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Bahrain opposition leaders arrested after violent crackdown on protesters
Sarah Paulsworth on March 17, 2011 9:19 AM ET

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[JURIST] Six opposition leaders were arrested in Bahrain on Thursday after the government, backed by foreign troops from the Gulf Cooperation Council (GCC) [official website], violently dispersed protesters in the capital of Manana on Wednesday. Among those arrested [NYT report] are dissident Hassan Mushaima and secular party leader Ebrahim Sharif. Six people were killed during the clashes on Wednesday and at least 1,000 people were injured [Al Jazeera report]. Protesters injured in the melee have been denied medical care, and healthcare practitioners were beat [BBC report] for trying to help the injured. UN High Commissioner for Human Rights Navi Pillay [official profile] released a statement [text] on Thursday in which she said:
My office has been receiving desperate calls and emails from numerous individuals in Bahrain, terrified about the armed forces' intentions. There are reports of arbitrary arrests, killings, beatings of protesters and of medical personnel, and of the takeover of hospitals and medical centers by various security forces. These reportedly include Bahraini police, defense forces and troops from the Gulf Cooperation Council's Peninsula Shield Force. This is shocking and illegal conduct. Police and armed forces must immediately leave healthcare facilities and cease their harassment and intimidation of health professionals.
Pillay called on the government to stop using force against protesters and to facilitate medical treatment for the injured.

On Tuesday, Bahraini King Hamad bin Isa Al Khalifa [official website] declared [JURIST report] a three-month state of emergency [decree text, in Arabic] in response to growing unrest in the island nation. The state of emergency comes just days after a group of 22 Bahraini lawmakers, part of an independent pro-government bloc, called Sunday on the King to impose martial law under articles 36 and 123 of the Bahraini Constitution [text, PDF]. Last week, the member states of the GCC, which includes Bahrain, Saudi Arabia, Kuwait, Oman, Qatar and the UAE, deployed troops to Bahrain [BBC report] for the purpose of guarding oil installations and financial institutions. The Bahraini government's response to the ongoing protests have prompted international concern. In February, UN Secretary-General Ban Ki-moon [official profile] called for an end to violence against protesters [JURIST report] in the country, referencing attempts to quell protests sweeping across the region. Ban said that he is "disturbed by all these violent means of trying to disperse demonstrators, the freedom of expression, freedom of access to information, particularly the journalists."

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Obama administration supports Internet privacy legislation at Senate hearing
Ann Riley on March 17, 2011 8:15 AM ET

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[JURIST] The Obama administration on Wednesday backed Internet privacy legislation at a hearing [materials] before the US Senate Committee on Commerce, Science, and Transportation [official website]. The hearing followed reports released in December by the US Department of Commerce and the Federal Trade Commission (FTC) [reports, PDF] petitioning for stronger online privacy protections, while maintaining the innovation of the Internet. Assistant Secretary of Commerce for Communications and Information Lawrence Strickling [official profile] described [Commerce blog] how legislation would "establish a clearer set of rules for the road for businesses and consumers, while preserving the innovation and free flow of information that are hallmarks of the Internet." FTC Chairman Jon Leibowitz [official profile] explained how legislation might help to further the agency's efforts at establishing a "Do Not Track" system [press release], describing how consumers could opt out of sharing their private information just once for all Internet based companies. Commerce Committee Chairman Jay Rockefeller (D-WV) [official profile] expressed [press release] the importance of Congress stepping up to protect consumer information:
I appreciate that we live in a world in which online technology is rapidly evolving. I know some online companies have taken steps to address consumer privacy. And, I appreciate the need to proceed carefully when providing consumer protections that may disrupt the functionality of the Internet. But Congress can no longer sit on the sidelines. There is an online privacy war going on, and without help, consumers will lose. We must act to give Americans the basic online privacy protections they deserve.
Last year, US Representatives Rick Boucher (D-VA) and Cliff Stearns (R-FL) [official website] proposed draft legislation [JURIST report] aimed at protecting Internet privacy and regulating how websites track information about visitors and then use that information to target advertising. The bill would have required websites to inform visitors how their information will be collected and used and to allow consumers to opt out. Representative Jackie Speier (D-CA) [official website] introduced [press release] similar legislation [HR 654 text] last month. Senator John Kerry (D-MA) [official website] also plans on introducing a commercial privacy bill of rights [press release].

Support for legislation to protect online consumer rights comes amid mounting controversy surrounding Internet privacy issues. In November, the Federal Communications Commission (FCC) [official website] confirmed that it is investigating [JURIST report] Internet search company Google [corporate website; JURIST news archive] to determine if it violated communications laws when its Street View [JURIST news archive] vehicles inadvertently collected private user data, including passwords and URLs, over WiFi networks. At the time, members of Congress indicated that the incident could factor into new Internet privacy legislation. Also in November, the European Commission [official website] recommended stronger Internet privacy laws [JURIST report] after a reviewing its 15 year-old privacy laws. Earlier that week, Google reached a settlement [text, PDF; JURIST report] in a class action lawsuit regarding privacy breaches relating to its Google Buzz social networking program. Under the settlement, Google will place $8.5 million dollars into a common fund to distribute to organizations that provide education regarding Internet privacy. In addition to investigations within the FCC and the FTC, Google has also recently come under investigation for privacy breaches relating to its Street View program in the UK, Canada, Australia, South Korea, and Spain [JURIST reports].

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