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Legal news from Monday, October 17, 2011




Australia urged to investigate Sri Lanka war crimes
Jennie Ryan on October 17, 2011 1:18 PM ET

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[JURIST] A group of rights organizations and lawmakers on Monday called for Australia to investigate [press release, PDF] a top ranking official in the Sri Lankan High Commission [official website] in Canberra for war crimes violations allegedly committed by the Sri Lankan Navy during clashes with the Liberation Tigers of Tamil Eelam (LTTE) [JURIST news archive] in 2009. The call to investigate comes after the Australian International Commission of Jurists (ICJ) [official website] delivered a brief [The Age report] to the Australian Federal Police [official website] that they claim contains credible evidence of war crimes and crimes against humanity. The high commissioner, Thisara Samarasinghe [official profile], is a former Sri Lankan navy admiral and was a commander during the last months of the war when naval ships allegedly fired on civilians. Samarasinghe claims that his actions during the war were not in violation of the rules of conflict. Calls for investigation come days before Sri Lankan President Mahinda Rajapaksa [official profile] is scheduled to participate in the Commonwealth Heads of Government Meeting (CHOGM) [official website], a biannual meeting of the prime ministers and presidents of its member countries. The meeting will take place in Perth, Australia, where leaders are set to discuss both local and global issues and to develop related policies and initiatives.

Early this month, the Sri Lankan Special Envoy of the President on Human Rights, Mahinda Samarasinghe [official profile], announced that the Cabinet of Ministers has adopted the National Action Plan for the Protection and Promotion of Human Rights [JURIST report] after coming under international criticism for allegations of human rights violations. The five-year plan addresses eight areas [Daily Mirror report]: civil and political rights, economic, social, and cultural rights, children's rights, labor and migrant worker rights, and the prevention of torture. Last month, UN Secretary-General Ban Ki-Moon [official profile; JURIST news archive] sent a report [JURIST report] to the UN Human Rights Council (UNHRC) [official website] accusing Sri Lankan troops of killing tens of thousands of civilians during the 2009 civil war. In April, a UN panel of experts on Sri Lanka found credible allegations of war crimes [JURIST report] committed during the country's war with the LTTE, warranting further investigation. In December, the Sri Lankan Ministry of External Affairs [official website] announced that the UN panel would be allowed to visit [JURIST report] the island to look into alleged war crimes. The decision signaled a reversal after months of strong opposition [JURIST report] from the Sri Lankan government, which described the UN panel as an infringement of Sri Lanka's sovereignty.




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France court orders block on 'copwatch' website
Jennie Ryan on October 17, 2011 11:01 AM ET

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[JURIST] The Tribunal de Grande Instance de Paris [official website, in French] on Friday ordered [judgment in PDF, in French] French Internet service providers to block access to Copwatch Nord Paris I-D-F, a website designed to allow civilians to post videos of alleged police misconduct. The decision was applauded by the police union, Alliance Police Nationale (APN) [union website, in French], which argued that the website incited violence against police. Jean-Claude Delage, secretary general of the APN, said that "[t]he judges have analyzed the situation perfectly—this site being a threat to the integrity of the police — and made the right decision." Opponents of Internet censorship were also quick to comment on the judgment. Jeremie Zimmermann, spokesman for La Quadrature du Net [advocacy website], a Paris-based net neutrality organization, called the order "an obvious will by the French government to control and censor citizens' new online public sphere." The site was ordered to be blocked immediately.

France does not have an equivalent to the US First Amendment [text], which prohibits the government from making any law "abridging the freedom of speech, or of the press." In August, the US Court of Appeals for the First Circuit [official website] ruled that there is a clearly-established First Amendment right [JURIST report] to film police officers performing their duties in a public space. The Center for Constitutional Rights [advocacy website] filed an amicus brief [PDF] in the case arguing that concerned individuals and cop-watch groups have a right to record the activity of police in the public. The case stems from a 2007 incident when police officers arrested Simon Gilk after he openly recorded three police officers arresting a suspect on the Boston Common.




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Supreme Court to hear immunity, discrimination, free speech cases
Maureen Cosgrove on October 17, 2011 10:41 AM ET

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[JURIST] The US Supreme Court [official website] granted certiorari [order list, PDF] Monday in four cases. In Kiobel v. Royal Dutch Petroleum [docket; cert. petition, PDF], the court will determine whether three oil companies are immune from US lawsuits under the Alien Tort Statute of 1789 [text] for torture and international law violations that took place overseas. In a similar case, Mohamad v. Rajoub [docket], the court will decide whether political organizations including the Palestinian Authority and the Palestine Liberation Organization could be immune from liability under the Torture Victims Protection Act of 1992 (TVPA) [text]. The plaintiffs in both cases allege human rights violations against an entity other than an individual person. The US Court of Appeals for the Second Circuit ruled that the oil companies were immune from liability [JURIST report], and the US Court of Appeals for the District of Columbia Circuit reached the same result [opinion, PDF] with respect to political organizations. The court will hear arguments for both Kiobel v. Royal Dutch Petroleum and Mohamad v. Rajoub in tandem.

The court will also hear arguments in Elgin v. Department of the Treasury [docket; cert. petition, PDF] to decide whether federal district courts have jurisdiction over constitutional claims for equitable relief brought by federal employees. The plaintiffs, former federal employees who had failed to register with the Selective Service between the ages of 18 and 26 pursuant to the Military Selective Service Act (MSSA) [text, PDF], claim that the MSSA discriminates based on sex because it imposes a lifetime bar on federal executive agency employment for violations carried out by a specific group of men. The men resigned or were fired from their federal posts for failure to register. The US Courts of Appeals for the Third and District of Columbia Circuits have held that federal employees do have valid claims under the Civil Service Reform Act [materials], while the First, Second and Tenth Circuits have precluded such jurisdiction.

Finally, in US v. Alvarez [docket; cert. petition, PDF], the court is asked to determine whether the Stolen Valor Act of 2005 (SVA) [text], legislation that makes it a federal crime to falsely assert that one has "received a decoration or medal authorized by Congress" for US armed forces, is a violation of the First Amendment [text] right to freedom of speech. Respondent Xavier Alvarez told members of a public water district board meeting that he was a retired US Marine, had been wounded many times and received the Congressional Medal of Honor, when in fact he had never served in the US military. Alvarez pleaded guilty and was ordered to pay a fine and serve three years of probation, but the US Court of Appeals for the Ninth Circuit reversed the conviction [opinion, PDF], finding the SVA facially unconstitutional [JURIST report]. The US Solicitor General argued [JURIST report] in his petition for certiorari that the appeals court erroneously applied the strict scrutiny standard to invalidate the SVA and overturn the conviction.




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Indian trust lawsuit leader Cobell dies at 65
Alexandra Malatesta on October 17, 2011 9:51 AM ET

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[JURIST] Elouise Cobell, who successfully led plaintiffs in the Indian trust class action lawsuit [class action website] against the US Department of the Interior (DOI) [official website], died from cancer Sunday at age 65. The resulting $3.4 billion settlement [agreement, PDF] for mismanaged Indian land royalties was the largest settlement in US government history. Cobell, who was an accountant and a member of the Blackfeet tribe [official website], grew up on a Montana reservation [WP article] without amenities such as electricity, telephone or running water. From a young age, she was told stories about the US government shortchanging Native Americans on land development leases for oil, gas and farming, rendering her tribe largely impoverished and under-employed. As the treasurer for the Montana tribe, Cobell finally decided to bring the lawsuit in 1996 as a result of the government's slow-moving disbursements for the acreage they developed. In a statement [text] regarding her passing, Secretary of the Interior Ken Salazar said:
I am deeply saddened by the loss of Elouise Cobell, who dedicated her life to the betterment of Indian people. She sought justice to address historical wrongs that had weighed on our nation’s conscience and was a significant force for change. ... As we pause to reflect on Elouise's life and achievements, let us be inspired to do better by the first Americans, and to uphold our nation's promise of justice and opportunity for all.
Cobell spent 15 years advancing the lawsuit and was diagnosed with cancer weeks before the settlement was approved.

Judge Thomas Hogan of the US District Court for the District of Columbia [official website] approved the $3.4 billion settlement [JURIST report] in June. At that time, President Barack Obama [official website] expressed hope [statement] that the settlement would improve the relationship between the US government and American Indians and promised to "engage in government-to-government consultations" with the tribes over the land consolidation part of the settlement. The settlement was ratified by both Houses of Congress and approved by the president before being given final approval by the district court in August. The settlement was agreed upon [JURIST report] in December 2009. The plaintiffs had rejected [JURIST report] a $7 billion settlement offer in 2007.




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Malaysia opposition leader Anwar's defense rests in sodomy trial
Alexandra Malatesta on October 17, 2011 9:36 AM ET

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[JURIST] Defense counsel for Malaysian opposition leader and former deputy prime minister Anwar Ibrahim [official profile; JURIST news archive] rested its case on Monday in Anwar's sodomy trial, for which a verdict is expected by the end of the year. The prosecutor plans to call four witnesses to refute testimony of one of the defense experts, an orthopedic surgeon, who testified [AP report] that Anwar's back condition would prevent him from engaging in the sexual act. Under Malaysian law, sodomy is punishable by 20 years in prison regardless of consent. This is the second sodomy case launched against Anwar, who has consistently argued that the allegations are a politically motivated attempt to silence the opposition. The continuance of the trial could potentially strengthen Prime Minister Najib Razak's majority government. A general election is expected to be called this year even though one is not due until 2013, causing opposition support to fear that a guilty verdict might interfere with the national polls.

A Malaysian court ruled [JURIST report] in May that prosecutors had enough evidence to pursue a sodomy case against Anwar. The opposite leader was arrested in July 2008 after he filed a lawsuit against his accuser [JURIST reports] in late June. Last December, Anwar filed a complaint [JURIST report] in a Malaysian court over a WikiLeaks [website] cable published by Australian newspapers stating he had engaged in sodomy. The leaked US diplomatic cable claimed Australia's Office of National Assessments [official website] had concluded, in agreement with Singapore's Intelligence Agency, that the sodomy charges against Anwar were the result of a set-up, but that he was in fact guilty of committing the acts. Last year, the Federal Court of Malaysia [official website], the country's highest court, rejected Anwar's 2006 defamation suit [JURIST report] against against former prime minister Mahathir Mohamad [BBC profile] for allegedly suggesting at a human rights conference that Anwar was unfit for office because of his supposed homosexuality. Anwar was Malaysia's Deputy Prime Minister under former Mahathir Mohamad until he was fired in 1998 following earlier sodomy charges of which he was initially convicted but later acquitted. He reentered Malaysian politics following the expiration of a 10-year ban [JURIST report] against him for unrelated corruption charges.




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