Author: Sarah Miley

[JURIST] The US Court of Appeals for the District of Columbia Circuit [official website] on Friday refused to order a new evidentiary hearing [opinion, PDF] in the case of five Chinese Muslim Uighurs detained at Guantanamo Bay [JURIST news archives]. Instead, in a per curiam decision, the court reinstated its original opinion, which gives political branches exclusive power in determining the release of non-citizens being held by the federal government. In April, the Supreme Court ordered the circuit court to reconsider [JURIST report] Kiyemba v. Obama [docket; CCR backgrounder] in light of the fact that each of the remaining Uighurs has received an offer of resettlement by another country. In response, the circuit court denied the petitioners’ request to remand the case to the district court [JURIST report] for an evidentiary hearing on whether any of the resettlement offers were “appropriate,” holding that it was in the power of the political branches to determine whether a country is appropriate for resettlement. The court further explained that even if the detainees had good reason to reject the resettlement offers, they still possessed no right to be released into the US:

In seven separate enactments – five of which remain in force today – Congress has prohibited the expenditure of any funds to bring any Guantanamo detainee to the United States. Petitioners say these statutes, which clearly apply to them, violate the Suspension Clause of the Constitution. But the statutes suspend nothing: petitioners never had a constitutional right to be brought to this country and released. Petitioners also argue that the new statutes are unlawful bills of attainder. The statutory restrictions, which apply to all Guantanamo detainees, are not legislative punishments; they deprive petitioners of no right they already possessed.

The Constitution Project [advocacy website], a bipartisan think tank focusing on constitutional issues, immediately denounced the judgment [press release]. The group criticized the court’s ruling for being too broad on the issue of the judiciary’s role the release of detainees. Authoring a separate concurring opinion, Circuit Judge Judith Rogers, agreed with the Constitution Project’s assertion that the ruling was too broad, but held that there was no role for the judiciary in this case because the five Uighurs “hold the keys to their release from Guantanamo. All they must do is register their consent” to the proposed resettlement offers.

The DC circuit court’s ruling came in a case informally referred to as Kiyemba I, which is separate from a different suit filed by the Uighur detainees, known as Kiyemba II. In March, the Supreme Court declined to rule [JURIST report] in Kiyemba II, on certain issues surrounding the transfer of Guantanamo Bay detainees. Lawyers for four Uighurs detained at Guantanamo were appealing [JURIST report] an April 2009 ruling [opinion, PDF; JURIST report] by the DC circuit court, which held that US courts cannot prevent the government from transferring Guantanamo detainees to foreign countries on the grounds that detainees may face prosecution or torture in the foreign country. Of the 22 Uighurs originally detained at Guantanamo Bay, 17 have accepted offers of relocation to other countries. Two Uighurs were transferred to Switzerland, six to Palau, four to Bermuda and five to Albania [JURIST reports].

[JURIST] US President Barack Obama [official website] held a press conference [transcript] Thursday to announce new regulations to mitigate future oil spill disasters and the current plan of action for resolving the crisis created by the BP Deepwater Horizon oil spill [BBC backgrounder] in the Gulf of Mexico. The government will be suspending several offshore drilling activities including exploration of platform locations in Alaska, pending lease sales in the Gulf and Virginia, and the drilling of 33 deepwater exploratory wells in the Gulf. The government will also suspend the issuance of new permits to drill deepwater wells for six months. Obama stated that increased government regulation in the oil industry was necessary to alter the “cozy and sometimes corrupt” relationship it has built with federal regulators, specifically the Minerals Management Service (MMS) [official website]. The president admitted that even though Department of Interior Secretary Ken Salazar [official profile] has worked hard to reform the once notoriously corrupt MMS, more action is necessary to ameliorate that agency’s malfeasance. Responsibilities of the MMS, which include not only providing permits, but also enforcing laws governing oil
drilling, will be divided so individuals who permit the drilling will be different from those that are in charge of regulation and enforcement of safety standards. New permits from the MMS will also require a 30-day safety and environmental review. When asked about the resignation of MMS director Elizabeth Birnbaum [official profile], Obama stated that he was not yet aware of the circumstances under which Birnbaum resigned, but that he had given Salazar command of the “top-to-bottom” reformation of the MMS and trusted him to secure a staff which is “operating at the highest level and aren’t making excuses when things break down, but are intent on fixing them.” Obama closed the press conference by reiterating his commitment to tackle the crisis created by the oil spill.

The US government has struggled to gain political control over the oil spill ever since the severity of the spill and the lack of federal regulation of offshore drilling became public. Last week, Obama signed an executive order establishing an independent commission [JURIST report] to investigate offshore drilling and the Gulf of Mexico oil spill. The bipartisan National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling will be charged with identifying the causes of the BP oil spill and developing options to mitigate future occurrences through laws, regulations and agency reform. The Obama administration has also asked Salazar to conduct a “top-to-bottom” reform of the MMS [speech text] and ordered immediate inspections of all deep water operations in the Gulf. The Deepwater Horizon oil spill was a result of an oil well blowout that caused an explosion 5,000 feet below the surface of the Gulf. The amount of oil spilled into the Gulf is part of an ongoing debate but the resulting oil slick has covered at least 2,500 square miles and has now surpassed the Exxon Valdez [JURIST news archive] as the worst oil spill in US history. The White House is keeping a daily chronology of events [text].

[JURIST] The Tokyo District Court [official website] on Wednesday began [Sea Shepherd press release] the trial of New Zealand anti-whaling activist Peter Bethune on five criminal charges in connection with boarding a Japanese whaling vessel as part of a protest in the Antarctic. The Japanese court system does not accept pleas before trial, but Bethune has made admission of guilt for four of the charges including trespass, destruction of property, illegal possession of a weapon and obstruction of business. He has denied the assault charge filed against him which stems from allegations that Bethune threw cartons of rancid butter at the vessel and injured a Japanese crewman in the process. If convicted, Bethune could face a prison term ranging from 15-25 years [TVNZ report], but his lawyer has indicated that the prosecutor may seek a sentence of two-and-a-half to three years. A verdict is expected [Daily Yomiuri report] as early as next month.

Bethune’s charges [JURIST report] stem from boarding the Shanon Maru II, a Japanese whaling vessel, in response to a January 6 collision with the anti-whaling vessel, the Ady Gil, which he captained. As a result of the collision, the bow of the Ady Gil was sheared off, and the crew was rescued by another ship. On February 15, Bethune allegedly approached the Shanon Maru II ship on a jet ski, cut through anti-boarding netting surrounding the ship, boarded the ship, and then presented its captain with a bill for $3 million in damage done to his ship. He was taken into custody and returned to Tokyo where he was arrested by the Japanese Coast Guard. The Sea Shepherd Conservation Society [advocacy website], of which Bethune is a member, has criticized [press release] the indictment, saying the “charges are bogus” and that the group “questions the credibility of the entire Japanese judicial system for entertaining such absurdities.” The group claims that Bethune is being held for “purely political reasons” in order set an example for anti-whaling activists.

[JURIST] UNICEF [official website] expressed concern [press release] Wednesday over Guantanamo Bay [JURIST news archive] detainee and former child soldier Omar Khadr [DOD Materials; JURIST news archive]. Khadr was arrested in Afghanistan in 2002 at the age of 15 after he allegedly threw a grenade that killed on soldier and injured another. The statement held that recruitment and use of child soldiers is a war crime and those that should be punished for a child’s acts of violence are the adult recruiters who manipulate young children into committing violent crimes. UNICEF said that separate systems have been created to accommodate judicial proceedings for child soldiers and are much better equipped to adjudicate juveniles suspected of war crimes:

[F]ormer child soldiers need assistance for rehabilitation and reintegration into their communities, not condemnation or prosecution. The prosecution of Omar Khadr may set a dangerous international precedent for other children who are victims of recruitment in armed conflicts. At a time when the UN celebrates the 10th anniversary of the Optional Protocol on the Involvement of Children in Armed Conflict, we call on all governments that have ratified this treaty, including the United States, to uphold the spirit of the Protocol and all its provisions. In addition, anyone prosecuted for offenses they allegedly committed while a child should be treated in accordance with international juvenile justice standards, which provide them with special protections. Omar Khadr should not be prosecuted by a tribunal that is neither equipped nor required to provide these protections and meet these standards.

The Optional Protocol on the Involvement of Children in Armed Conflict requires States that ratify it to “take all feasible measures” to ensure that members of their armed forces under the age of 18 do not take a direct part in hostilities. Khadr is the last child soldier being held at the Guantanamo Bay detention facility.

Earlier this month, a UN official called on the US and Canada to respect international conventions [JURIST report] and release Khadr into Canadian custody. In February, Khadr’s lawyers filed an emergency motion in the Federal Court of Canada [official website] challenging the decision of the Canadian government not to seek his repatriation [JURIST report]. The Canadian Supreme Court ruled that Canada was not obligated [JURIST report] to seek his repatriation despite having violated his rights under section 7 of the Canadian Charter of Rights and Freedoms [text]. A US military judge has announced that Khadr’s trial will begin on August 10 [JURIST report]. Army Col. Patrick Parrish also ordered pre-trial hearings [JURIST report] on the admissibility of Khadr’s alleged confession to resume July 12. Khadr’s pre-trial hearings were suspended last month so that Pentagon officials could submit him to a mental health evaluation.

[JURIST] US lawmakers are currently considering a Department of Defense (DOD) [official website] appropriations bill containing a section that would allow increased investigation by the Pentagon into the practices of lawyers representing Guantanamo Bay [JURIST news archive] detainees. Section 1037 of the National Defense Authorization Act for Fiscal Year 2011 [text, PDF] would allow the Pentagon’s inspector general to conduct investigations if there is reasonable suspicion that a Guantanamo lawyer is interfering with DOD detention facility operations, violating DOD policy, violating any law that is within the exclusive jurisdiction of the inspector general, or generating a “material risk” to a member of the armed forces. Results from these investigations are reported back to Congress. The American Bar Association [association website] opposes the provision [press release], with President Carolyn Lamm stating Wednesday that the Department of Justice is the appropriate agency to investigate and prosecute lawyers for misconduct, not the DOD:

[The DOD legislation] will compromise the professional independence of counsel and divert already starved defense resources from defending clients to defending the conduct, practices, actions and strategies of their lawyers. The American system of justice depends on the essential role of lawyers in counseling their clients. This includes providing zealous and effective counsel, even to those accused of heinous crimes against this nation in the name of causes that evoke our contempt…[Lawyers] who engage in inappropriate conduct or counsel a client to engage in conduct that is criminal or fraudulent are subject to the disciplinary authority of the jurisdiction(s) in which they are admitted to practice.

The provision was proposed in response alleged malpractice [NYT report] by detainee lawyers, specifically allegations stemming from lawyers utilizing the John Adams Project [official website], a research and legal assistance organization. Representative Jeff Miller (R-FL) [official website] claims that researchers from the project supplied lawyers with pictures of interrogators to show their detainee clients. Guantanamo lawyers have rebuffed these statements, saying the pictures were acquired to use in trial for detainees who claim to have been illegally interrogated. Opponents of the bill have asked the provision to be thrown out before it is put up for a vote before the US House of Representatives this week.

The DOD appropriations bill, which was unanimously passed by the House Armed Services Committee [official website] last week, has also been a point of contention in the effort to shut down Guantanamo Bay. If passed, the legislation will prohibit [JURIST report] the Obama administration from modifying or building a facility in the US to hold detainees currently held at the detention facility. The bill requires [summary, PDF] that any plan to construct or modify US facilities to accommodate Guantanamo transfers be “accompanied by a thorough and comprehensive plan that outlines the merits, costs, and risks associated with utilizing such a facility.” As the Obama administration has not presented such a plan to Congress, the bill prohibits the use of any funds for the purpose of preparing a US facility for Guantanamo transfers. The Obama administration continues its push to close the Guantanamo Bay facility, despite missing its self-imposed one-year deadline [JURIST report] in January.

[JURIST] Lehman Brothers Holdings [corporate website] on Wednesday filed suit [complaint, PDF] against JPMorgan Chase & Co. [corporate website] for allegedly “siphoning” off billions of dollars in “critically-needed” assets days before the investment bank filed for a record-breaking bankruptcy. JPMorgan was Lehman’s main short-term lender before its collapse and acted acted as a middleman between Lehman and its investors. In the complaint, Lehman accused JPMorgan executives of using inside knowledge to take advantage of Lehman during its financial downfall and pressured the brokerage firm to turn over $8.6 billion in collateral in September 2008. The last-minute transactions allegedly accelerated Lehman’s free fall into bankruptcy, costing the investment bank tens of billions of dollars in “lost value.” The complaint, which was filed in the US Bankruptcy Court for the Southern District of New York [official
website] in Manhattan, is seeking monetary relief for JPMorgan’s contribution in Lehman’s downfall as a result of its wrongful conduct:

JPMorgan’s insistence on the new agreements in August and September 2008, its unjustified demands for billions in additional collateral, and its refusal to return that collateral in the critical days before [Lehman’s] bankruptcy filing, severely constrained [Lehman’s] liquidity and impeded its ability to pursue and implement alternatives and initiatives that would have resulted in the preservation of billions in value. Instead, [Lehman’s] liquidity constraints compelled an exigent chapter 11 filing that has resulted in tens of billions of dollars in additional lost value to the [Lehman] estate and its creditors. … It is now too late to undo all the harm caused by the [Lehman] bankruptcy. It is not too late, however, to return to [Lehman’s] estate and its creditors the billions of dollars of [Lehman] assets that JPMorgan illegally converted and continues to hold, and to compensate [Lehman] for all the damages that flow directly from JPMorgan’s misconduct. This lawsuit seeks to return that value to the [Lehman] estate and to restore all of the creditors to the position they would have occupied but for JPMorgan’s wrongful conduct.

A spokesperson for JPMorgan responded to the complaint [WSJ report] calling the suit “ill-conceived and meritless.” In March, a bankruptcy judge approved an accord providing for JPMorgan to return several billion dollars of assets to Lehman’s estate but giving Lehman a right to sue
further.

The collapse of complex financial firms such as Lehman Brothers has spurred government action to increase regulation and oversight. Last week, the US Senate [official website] passed [JURIST report] the Restoring American Financial Stability Act of 2010 [S 3217 materials], focused on increasing regulation in the financial sector following the recent economic crisis [JURIST news archive]. The bill creates a new regulatory council to monitor financial institutions in order to prevent the companies from becoming “too big to fail.” It also gives the Federal Reserve [official website] the power to supervise the largest financial companies and report to the government any risks the firms may pose to the economy at large. Additionally, a new consumer protection division will be established within the Federal Reserve to enforce rules against certain business practices like abusive mortgage lending and some credit card practices. As a final protection against future bailouts, the government will have the ability to seize and liquidate failing financial institutions before their collapse can have an adverse affect on the entire economy. US President Barack Obama praised the bill, but opponents of the legislation expressed concern that its passage will stifle the economy. The Senate bill has to be reconciled with the bill passed last December [JURIST report] by the US House of Representatives [official website] before Obama can sign it into law.

[JURIST] The International Criminal Court (ICC) [official website] on Wednesday reported [press release] Sudan to the UN Security Council [official website] for lack of cooperation in the pursuit of alleged war criminals [case materials] Ahmad Harun and Ali Kushayb [arrest warrants, PDF]. ICC Pre-Trial Chamber I released a decision [text, PDF] asking the Security Council to take any steps it deems appropriate to compel Sudan to comply with its obligation under Resolution 1593 [text, PDF], which provides that “the Government of Sudan and all other parties to the conflict in Darfur shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution.” The three-judge panel stated that the ICC has taken all possible measures to ensure cooperation from Sudan, but the government has refused to provide any assistance or information in regards to the case of Harun and Kushayb. Since the ICC concluded that it has exhausted all its resources, the responsibility will now be shifted to the Security Council to take appropriate action. Sudan, which is not a permanent member of the ICC under the Rome Statute
[text], refuses to recognize the court’s jurisdiction, stating that “the International Criminal Court has no place in this crisis at all.” Harun and Kushayb are wanted for 51 counts [case materials] of crimes against humanity and war crimes.

The decision stemmed from a request filed [JURIST report] by ICC Chief Prosecutor Luis Moreno Ocampo [official profile] last month for a finding of non-cooperation pursuant to Article 87 of the Rome Statute for the government’s refusal to arrest Harun and Kushayb. The request stated that “[t]o the contrary, the [government of Sudan] continues to commit crimes, promotes and protects the persons sought by the Court; and harasses all persons who are considered to be in favor of justice.” The majority of the ICC caseload has come from Africa, causing tense relations with the governments in the region. On Monday, a collection of African civil society organizations issued a declaration urging greater cooperation [JURIST report] between the ICC and African nations in anticipation of the upcoming ICC Review Conference of the Rome Statute [official website]. The group of 124 organizations called on African governments to enhance their cooperation with the court and to make greater efforts in the execution of outstanding warrants. The review conference will take place in Kampala, Uganda from May 31 to June 11, 2010. During the conference, member states will consider proposed amendments [text] to the statute.

[JURIST] Italian Foreign Minister Franco Frattini [official profile] announced Tuesday that Italy will take two more detainees from the Guantanamo Bay detention facility [JURIST news archive]. The announcement came during a meeting the US officials from the National Security Council, including National Security Adviser James Jones. Italy’s Interior Ministry [official website, in Italian] will review profiles of potential transferees before an agreement is made with US authorities on which detainees Italy will take. Italy hinted at the possibility that the selected detainees may be brought to Italy as cleared captives [Miami Herald report] rather than face trial or additional jail time. Last year, Italy accepted three Tunisian detainees [JURIST report] from Guantanamo to stand trial for terrorism charges.

The Obama administration continues its push to close the Guantanamo Bay facility, despite missing its self-imposed one-year deadline [JURIST report] in January. The administration has run into several hurdles in closing the prison, including opposition from members of Congress and the suspension of detainee transfers to Yemen [JURIST report]. Last week, the US House Armed Services Committee [official website] approved a bill [JURIST report] prohibiting the Obama administration from modifying or building a facility in the US to hold detainees currently held at Guantanamo. The bill requires [summary, PDF] that any plan to construct or modify US facilities to accommodate Guantanamo transfers be “accompanied by a thorough and comprehensive plan that outlines the merits, costs, and risks associated with utilizing such a facility.” As the Obama administration has not presented such a plan to Congress, the bill prohibits the use of any funds for the purpose of preparing a US facility for Guantanamo transfers. The number of detainees at Guantanamo has significantly been reduced as the administration continues to transfer detainees to a growing list of countries including Bulgaria, Spain, Maldives, Georgia, Albania, Latvia, Switzerland, Slovakia, Algeria, Somaliland, Palau, Belgium, Afghanistan, and Bermuda [JURIST reports].

[JURIST] A lawyer for ousted [JURIST report] Thai prime minister Thaksin Shinawatra [BBC profile; JURIST news archive] on Wednesday filed an appeal against an arrest warrant [JURIST report] issued Tuesday on charges of terrorism. Thaksin is accused of involvement in the the recent political violence [JURIST news archive] in Bangkok, as the figurehead of the pro-democracy protesters known as the red shirts [BBC backgrounder]. Thaksin’s lawyer was accompanied by two additional red shirt leaders [Bangkok Post report], who have sworn they will testify that Thaksin was not involved in any acts of terrorism if the court chooses to hear the appeal. The red shirts’ protests in the capital’s central commercial district paralyzed the country for the past two months, and Thaksin has been repeatedly accused of organizing and financing the campaign. The former prime minster was removed from power in 2006 by a military coup and has been living abroad in Cambodia where the government has refused to extradite [JURIST report] him to Thailand for criminal prosecution. The Thai government hopes that the official charge of terrorism will make foreign governments more malleable in their extradition policies.

The Thai government’s response to the recent conflict in Bangkok has been criticized by international human rights organizations. Last week, Human Rights Watch (HRW) [advocacy website] expressed concern [JURIST report] about the treatment of anti-government protesters detained during the Bangkok demonstrations. The organization chided the Thai government for enacting a “draconian” emergency decree giving Thai security forces broad power to arrest individuals without formal charges and hold them in secret detention. The decree, which lacks judicial oversight, also prevents detainees from having access to legal counsel or family members. Earlier this month, a Thai court sentenced 27 protesters to six months in prison for violating the emergency decree. Under the strict security law [JURIST report] adopted in anticipation of the protests, the red shirts initially faced up to a year in prison, but their confessions allowed the district court to commute their sentences [AFP report]. During their protests, the red shirts demanded that Prime Minster Vejjajiva Abhisit [BBC backgrounder] resign and called for new elections. The Thai government implemented a curfew [JURIST report] in Bangkok and other areas of the country in response to violence that erupted when the leader of the red shirts announced an end to the protests. The curfew remains in effect as the government tries to maintain order.

[JURIST] The family of war crimes suspect Ratko Mladic [case materials; JURIST news
archive] will file a claim in the Belgrade District Court [official website, in Serbian] seeking to have the former military leader declared officially dead, according to Serbian media reports [Novosti report, in Serbian] Tuesday. This declaration would allow Mladic’s family to collect his state pension and sell his property. Under Serbian law, an individual can be officially declared dead when he is over the age of 70 and no reliable information on his whereabouts has been discovered for five years. Mladic is 68, but his family is convinced he is no longer alive, as they have not heard from him in over seven years and he was in poor health at that time. A lawyer for the family stated that they will still file the claim and ask the court for leniency so the family can put Mladic’s prosecution behind them. Deputy Serbian War Crimes Prosecutor Bruno Vekaric has dismissed [Press TV report] the family’s request, calling it “speculation,” and stressed that the investigation into the war crimes suspect’s location will continue. Mladic is one of two high-level targets still at large under the jurisdiction of the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website; JURIST news archive] and faces charges of genocide and crimes against humanity for allegedly overseeing the Srebrenica [JURIST news archive] massacre and other war crimes violations during the Bosnian civil war [JURIST news archive].

Earlier this month, the ICTY announced that the Office of the Prosecutor [official website] has filed a motion to amend [JURIST report] the indictment against Mladic. Prosecutors believe that the amended indictment will help speed up the court proceedings once he is captured. The amended indictment includes 11 counts of genocide, crimes against humanity, and violations of the laws and customs of war that took place between 1992-1995. In March, UN Secretary-General Ban Ki-moon [official website] said that the ICTY will continue to operate [JURIST report] beyond its originally planned end date, in part to apprehend both Mladic and political leader Goran Hadzic [case materials], who both face a significant number of charges. Ban estimated that it will be necessary for the court to remain open until 2013.

[JURIST] Pakistan’s Supreme Court [official website] ruled Tuesday that a Pakistani cleric accused by India of plotting the 2008 Mumbai terror attacks [JURIST news archive] cannot be jailed due to lack of evidence. Hafiz Muhammad Saeed [Global Jihad profile] is the head of fundamentalist terrorist group Lashkar-e-Taiba (LeT) [CFR backgrounder], which was allegedly behind the attacks. Pakistan put Saeed under virtual house arrest [JURIST report] one month after the onslaught, where he remained except for a three-month period last summer, but the Lahore High Court (LHC) [official website] ordered his release [JURIST report] in October after finding insufficient evidence to link him to the Mumbai attacks or al Qaeda [JURIST news archive]. The Supreme Court’s ruling could strain the already fragile relationship between India and Pakistan, which had recently begun peace talks.

The charges against Saeed had been filed under the Pakistani Anti-Terrorism Act [text] and were related to speeches Saeed gave while visiting Faisalabad last year. It is claimed that he discussed [Times of India report] the significance of Jihad and asked for funding for his charity Jamaat-ud-Dawa (JuD), which is believed to be a front for the LeT. Saeed’s lawyer successfully argued that JuD was not a banned group. In September, Pakistan Interior Minister Rehman Malik announced that his government would indict seven suspects [JURIST report] for their role in the attacks, also requesting further evidence from India that Saeed was involved in planning the attacks. Mumbai has suffered a number of terrorist attacks allegedly linked to the LeT in recent years, leading the government to consider controversial terrorism laws and to institute special courts [JURIST reports] to try suspects.

[JURIST] A criminal court in Thailand issued an arrest warrant on Tuesday for ousted [JURIST report] prime minister Thaksin Shinawatra [BBC profile; JURIST news archive] on charges of terrorism. Thaksin is accused of involvement in the the recent political violence [JURIST news archive] in Bangkok, which left more than 80 dead and more than 1,000 injured. Thaksin has been seen as the figurehead of the pro-democracy protesters, United Front for Democracy Against Dictatorship [party website, in Thai], also known as red shirts [BBC backgrounder]. The red shirts’ protests in the capital’s central commercial district paralyzed the country for the past two months, and Thaksin has been repeatedly accused of organizing and financing the campaign. The former prime minster was removed from power in 2006 by a military coup and has been living abroad in Cambodia where the government has refused to extradite [JURIST report] him to Thailand for criminal prosecution. The Thai government hopes that the official charge of terrorism will make foreign governments more malleable in their extradition policies.

The Thai government’s response to the recent conflict in Bangkok has been criticized by international human rights organizations. Last week, Human Rights Watch (HRW) [advocacy website] expressed concern [JURIST report] about the treatment of anti-government protesters detained during the Bangkok demonstrations. The organization chided the Thai government for enacting a “draconian” emergency decree giving Thai security forces broad power to arrest individuals without formal charges and hold them in secret detention. The decree, which lacks judicial oversight, also prevents detainees from having access to legal counsel or family members. Earlier this month, a Thai court sentenced 27 protesters to six months in prison for violating the emergency decree. Under the strict security law [JURIST report] adopted in anticipation of the protests, the red shirts initially faced up to a year in prison, but their confessions allowed the district court to commute their sentences [AFP report]. During their protests, the red shirts demanded that Prime Minster Vejjajiva Abhisit resign and called for new elections. The Thai government implemented a curfew [JURIST report] in Bangkok and other areas of the country last week in response to violence that erupted when the leader of the red shirts announced an end to the protests. The curfew remains in effect as the government tries to maintain order.

[JURIST] The Netherlands District Court of Rotterdam [official website, in Dutch] on Tuesday commenced [press release, in Danish] the first European trial of Somali pirates [JURIST news archive] under charges of “sea robbery” for hijacking a cargo ship registered in the Netherlands Antilles. The five accused Somali pirates were arrested last year during an attempt to forcibly board the cargo ship in the Gulf of Aden after a Danish navy frigate sunk the pirates’ boat. One defendant wept during his testimony, claiming [AP report] that the severe poverty in Somalia had driven him to piracy. The trial is scheduled to last five days, and the judgment is scheduled to be handed down in June. If convicted, the pirates could face a maximum of 12 years in prison.

The international community is supporting actions taken against piracy. Yemen’s Ministry of Defense announced last week that a Yemeni court sentenced six Somali pirates to death [JURIST report] and six additional pirates to 10-year jail sentences for the hijacking of a Yemeni oil tanker in April 2009. Earlier this month, the UN Office on Drugs and Crime (UNODC) [office website] announced that the island nation of Seychelles will create a UN-supported center [JURIST report] to prosecute suspected pirates. This will be the second such court established for the prosecution of pirates, following only Kenya. Last month, the UN Security Council approved a resolution [JURIST report] calling on member states to criminalize piracy under their domestic laws and urging Secretary-General Ban Ki-moon [official website] to consider an international tribunal for prosecuting piracy. The Security Council resolution came the same week the UN announced that a trust fund established to combat piracy will be funding five projects [UN News Centre report] aimed at piracy committed in the waters around Somalia.

[JURIST] Several international human rights and jurist organizations on Monday petitioned the UN [text, PDF] to support Spanish judge Baltasar Garzon [BBC profile; JURIST news archive] in his inquiry into human rights violations during the Spanish Civil War [LOC backgrounder] and to ask Spain to end his criminal prosecution.
Garzon was suspended last week [JURIST report] by the Spanish General Council of the Judiciary (CGPJ) [official website, in Spanish] for abusing his power by opening an investigation into war crimes allegedly committed under Francisco Franco [BBC backgrounder]. He has also been formally charged [JURIST report] with abusing his power for violating Spain’s 1977 amnesty laws, which bar investigation of all political crimes committed under the Franco regime. The international organizations argue [press release] that Spain’s actions show an improper interference with what is supposed to be an independent judiciary, and that the investigation and interpretation of Spain’s amnesty laws should be determined by judicial review and appeal:

By allowing Judge Garzon to be charged and suspended for carrying out his judicial duty to interpret the law as requiring the investigation of credible complaints of over 100,000 disappearances and executions, Spain is violating its positive legal duties arising from both domestic and international law to protect and enforce rights that are core to the implementation and enforcement of all human rights. … The paramount duty of states to ensure and allow effective investigations of disappearances and executions has been defined by international instruments and interpreted and confirmed by national and international tribunals. … Disappearances and executions remain in widespread use by states across the economic spectrum as a brutally effective means of neutralizing suspected opponents with absolute impunity. In the struggle between law and realpolitik, Judge Garzon has been a singular advocate for the proper universal enforcement of human rights and therefore one of the world’s most effective opponents of impunity. The charges against him have effectively silenced him and will indubitably have a chilling effect on other judges called to make unpopular decisions regarding allegations of serious criminal wrongdoing by former state agents.

No trial date has been set to adjudicate the claims against Garzon, but, if convicted, he could face a suspension of up to 20 years.

Last week, the judiciary oversight committee of the CGPJ approved a request [JURIST report] by Garzon to work with the International Criminal Court (ICC) [official website]. The ICC confirmed earlier this month [press release] that they had asked Garzon to work for them as a consultant for a period of seven months in order to improve their investigative methods. The CGPJ granted Garzon’s request for leave indicating there was no legal reason preventing him from working as a consultant with the ICC. Thousands gathered [JURIST report] in cities across Spain last month in support of Garzon, chanting slogans and displaying flags of the pre-war Republican government ousted by Franco. Garzon is widely known for using universal jurisdiction extensively in the past to bring several high-profile rights cases, including those against Osama bin Laden and former Chilean dictator Augusto Pinochet [JURIST news archives].

[JURIST] A Kenyan constitutional court ruled [judgment, PDF] Monday that inclusion of Islamic “Kadhi” courts [official website] in the nation’s current constitution [text, PDF] is illegal and discriminatory. The Kadhi court system, which elevates Islam over the country’s other religions, was deemed unconstitutional because it does not coincide with Kenya’s secular mandate. The court also held that supporting Kadhi courts with public funds is a form of segregation as it promotes the development of one religion over another. The three-judge panel did not determine whether the Islamic courts should be included in the nation’s new constitution, which will be put to a referendum on August 4. Kenyan Attorney General Amos Wako [official profile] has moved to challenge the court’s decision, calling the ruling itself unconstitutional. The Kadhi courts, which were created for the use of Muslims in areas of family law such as inheritance, marriage, divorce, and personal status, have become a contentious issue between political and religious leaders as Kenya’s struggle to develop a new constitution reaches its final stages.

Earlier this month, Wako published [JURIST report] the country’s draft constitution [text, PDF], which proposes more balance of power in the government. President Mwai Kibaki [official profile], Prime Minister Raila Odinga, and Vice President Kalonzo Musyoka have all supported the proposed constitution [Daily Nation report] and have urged citizens to approve it in the public referendum. Despite the government leaders’ widespread calls for cooperation and support, the proposed constitution still faces criticism, particularly from Kenyan religious figures who oppose [Daily Nation report] the draft’s position on abortion, marriage, and divorce. The president’s Cabinet members have encouraged the religious leaders to support the draft constitution and then pursue their goals through the political process [AP report] after the constitution is ratified. The draft includes several significant checks on presidential authority, including a requirement that presidential appointees face parliamentary confirmation and the removal of presidential appointment of judges. Members of Parliament receiving Cabinet positions will also have to relinquish their legislative seats. The changes are intended to reduce the widespread injustice throughout the country, and specifically address issues that led to violence following the 2007 presidential elections [JURIST news archive] where tens of thousands of protesters took to Kenya’s streets accusing Kibaki of election fraud after early opinion polls suggested rival Odinga was in the lead.

[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday ruled [opinion, PDF] unanimously in Hardt v. Reliance Standard Life Insurance Co. [Cornell LII backgrounder; JURIST report] that fee claimants filing lawsuits under the Employee Retirement Income Security Act (ERISA) [materials] are not required to be a “prevailing party” in order to be eligible for an attorney’s fees award under 29 USC s. 1132(g)(1) [text]. The fee-shifting statute applies in most ERISA lawsuits and allows the court to use discretion in assigning reasonable attorney’s fees to either party. Bridget Hardt filed a claim under ERISA against her employer’s insurance carrier, Reliance, after the carrier discontinued long term benefits it had previously awarded for a work-related injury. In pre-trial proceedings, the district court found “compelling evidence” in favor of Hardt but did not grant summary judgment in order to allow Reliance to reassess Hardt’s application. Reliance complied with the district court order and upon further evaluation reinstated Hardt’s benefits. No judgment was issued, but the district court awarded Hardt attorney’s fees under s. 1132. The US Court of Appeals for the Fourth Circuit vacated [opinion, PDF] the fees award granted by the lower court, holding that Hardt had failed to establish that she qualified as a prevailing party. Justice Clarence Thomas, delivering the opinion of the court, held that the circuit court’s addition of a prevailing party requirement was “inventing a statute rather than interpreting one” because s. 1132 expressly denotes that the district court can use its discretion to award attorney’s fees to either party, and incorporates no “prevailing party” provision. Therefore, a court may award fees and costs under s. 1132(g)(1), as long as the fee claimant has achieved “some degree of success on the merits.” The case was reversed and remanded to the Fourth Circuit for proceedings consistent with the Supreme Court’s judgment.

In April, the Supreme Court ruled [JURIST report] that a district court has an obligation to defer to an ERISA plan administrator’s reasonable interpretation of the terms of the plan if the plan administrator arrived at the interpretation outside the context of an administrative claim for benefits. The US Court of Appeals for the Second Circuit had ruled that a district court is under no obligation to defer to an ERISA plan administrator’s interpretation and that a district court has “allowable discretion” to adopt any “reasonable” interpretation of the terms of the plan.

[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday granted certiorari [order list, PDF] in five cases. In Williamson v. Mazda Motor of America [docket; cert. petition, PDF], the court granted a limited petition to decide whether a federal minimum safety standard [text], which authorizes automobile manufacturers to install a lap-only seat belt at the inboard seating positions of a vehicle, preempts a state tort action alleging that the manufacturer should have installed a lap and shoulder belt in one of those seating positions. A California state appeals court [official website] held [opinion, PDF] that a state action was preempted by Federal Motor Vehicle Safety Standard No. 208 [text], which requires lap and shoulder seat belt assemblies only for outboard seating. Petitioners claim that Mazda [corporate website] had a duty to warn of safety risks associated with lap only seat belts under Wyeth v. Levine [opinion, PDF; JURIST report], in which the Supreme Court ruled that federal approval of labels giving warnings about effects of drugs does not bar lawsuits under state law claiming inadequate warnings of a health risk.

The court also granted a limited petition in Sossamon v. Texas [docket; cert. petition, PDF] to decide whether an individual may sue a state or state official in his official capacity for damages for violations of the Religious Land Use and Institutionalized Persons Act [42 USC s. 2000cc text], which grants prisoners permission to obtain injunctive and declaratory relief against the government when it imposes a substantial burden on the religious exercise of a inmate. The US Court of Appeals for the Fifth Circuit reversed [opinion, PDF] a grant of summary judgment in favor of Texas and ordered further proceedings to determine if Texas had been exceeded its bounds under the act by prohibiting Sossamon to use the prison chapel for Christian worship, even though it was available for other uses.

The court granted certiorari to another federal preemption case on Monday in AT&T Mobility v. Concepcion [docket; cert. petition, PDF]. The court will decide whether the Federal Arbitration Act (FAA) [text], which provides for judicial facilitation of private dispute resolution through arbitration when the transaction involves interstate commerce, preempts states from enforcing alternate solutions when arbitration clauses are considered unconscionable. The US Court of Appeals for the Ninth Circuit held [opinion, PDF] that the FAA does not preempt a California unconscionability law, which allowed a class action against AT&T mobile despite a contractual clause prohibiting such proceedings.

In Arizona Christian School Tuition Organization v. Winn [docket; cert. petition, PDF] and Garriott v. Winn [docket; cert. petition, PDF], the court granted a consolidated petition, allowing one hour for oral argument. The court will determine the constitutionality of an Arizona tax credit for donations to organizations that provide scholarships at private schools, which allows scholarships funded by religious organizations to be granted only to students attending parochial schools. The US Court of Appeals for the Ninth Circuit held [opinion, PDF] that the taxpayers had standing to challenge the constitutionality of the law and allowed the claim to proceed. The outcome will determine if tax credit program unconstitutionally endorses or advances religion simply because taxpayers choose to direct more contributions to religious organization than nonreligious ones.

In Skinner v. Switzer [docket; cert. petition, PDF], the court will decide whether a convicted prisoner seeking access to biological evidence for DNA testing may assert a civil rights claim under Section 1983 [text] or if such a claim is cognizable only under a writ of habeas corpus. The US Court of Appeals for the Fifth Circuit affirmed [opinion, PDF] a district court decision to dismiss Skinner’s s. 1983 claim seeking access to DNA evidence that may prove his innocence in the murders for which he is now sentenced to death, stating that relief could only be sought through habeas corpus. The Supreme Court court also granted a stay of execution until the case is decided.

The court dismissed [opinion, PDF] a writ of certiorari as improvidently granted in Robertson v. US ex rel. Watson [docket; JURIST report], which challenged the constitutionality of a District of Columbia law under which a private party can bring an action for criminal contempt. The decision included a lengthy dissent from Chief Justice Roberts joined by Justices Antonin Scalia, Anthony Kennedy, and Sonia Sotomayor, maintaining that a criminal action can only be brought against a defendant by society as a whole, and therefore the lower court erred in its judgment upholding the law.

Also Monday, the Supreme Court delivered a per curiam opinion for a summary reversal in the capital case of Jefferson v. Upton [docket]. The court reversed and remanded the judgment of the US Court of Appeals for the Eleventh Circuit, which held that ineffective council defenses under habeas claims are subject to a higher standard than the normative “strong presumption of correctness” standard. The court’s opinion is its twelfth summary reversal this session.

[JURIST] The FBI on Monday released preliminary annual crime statistics for 2009, which indicated a drop in violent crime [press release] for the third year in a row. The FBI’s Preliminary Annual Uniform Crime Report [text] disclosed that violent crime in the nation decreased 5.5 percent, and property crime declined 4.9 percent, when compared with data from 2008. According to the report, all four categories of violent crime fell in 2009, including murder and nonnegligent manslaughter, forcible rape, robbery, and aggravated assault. There were also declines across the board for all city groups, with large metropolitan areas having the biggest decrease at 7.5 percent. Additionally, property crime has continued to decrease for the seventh year in a row. The FBI compiled the data from crime statistics from more than 13,000 law enforcement agencies nationwide. The numbers in the report are preliminary and will be made official later this year.

In December, the FBI released a preliminary report covering the first half of 2009 [JURIST report], indicating a 4.4 percent decrease in violent crime from January to June. Specifically, murder decreased 10 percent, robbery dropped 6.5 percent, forcible rape fell 3.3 percent, and aggravated assault decreased 3.2 percent. While violent crime rates dropped across the country as a whole, in cities of populations between 10,000 and 24,999, violent crime increased 1.7 percent. The drop follows a 1.9 percent decrease for 2008 and a 0.7 percent decrease [JURIST reports] for 2007. That came after two years of increasing rates of similar crimes, including a 2006 increase of 1.3 percent and a 2005 increase of 2.3 percent [JURIST reports].

[JURIST] A spokesperson for the UN peacekeeping mission in Haiti [official website] announced Saturday that the mission has launched an investigation into the shootings of dozens of prisoners in a jail riot following the January 12 earthquake [JURIST news archive] which killed over 200,000 people and left some 1 million homeless. An earlier investigation [NYT report] by the New York Times [media website] alleged that Haitian police officials opened fire on unarmed prisoners during the riot and sought to cover it up by claiming that prison ring-leader, Ti Mousson, murdered any inmates who refused to cooperate in his escape plan. According to the Times report, police officials raided the jail during the riot shouting for prisoners to lie down, but instead of securing the area began shooting the inmates, including those that had surrendered. One witness claims that some prisoners were killed systematically to “settle scores.” Following the shooting, police authorities failed to notify inmates’ relatives of the deaths, buried bodies without conducting autopsies and burned the surviving prisoners’ bloodstained clothing. Prison authorities deny the allegations and claim that no shots were fired by police officers.

In February the acting head of the UN Stabilization Mission in Haiti [official website] urged Haitians to turn in prisoners who escaped [JURIST reports] when the earthquake destroyed prisons and jails. The aftermath of the earthquake also placed a strain on detainees arrested since the disaster, as limited space and limited access to judges burdened the country’s already tenuous criminal justice system.

[JURIST] The US Department of Justice (DOJ) [official website] has decided not to file charges against former American International Group (AIG) [corporate website] executive Joseph Cassano, according to prosecutors from the US Securities and Exchange Commission (SEC) [official website] on Saturday. The decision appears to end a two-year criminal investigation of several executives from AIG’sFinancial Products subsidiary [official website], which played a large role in constructing complex contracts known as credit-default swaps [TIME backgrounder] that insured bond losses tied to the US housing market. The SEC investigation was undertaken to determine whether AIG officials deceived investors and auditors in 2007 by misrepresenting the accounting value of a credit default swap portfolio, which nearly bankrupted the company. The SEC will continue its investigation into the London-based Financial Products subsidiary and could eventually lead to civil actions.

In August former AIG executives agreed to settle [JURIST report] a suit brought by the SEC alleging their involvement in inflating the company’s reported financial records. The SEC accused former CEO Maurice Greenberg and former CFO Howard Smith of being “control persons” under the Securities Exchange Act [text], making them liable for AIG’s securities law violations. The SEC claimed that the two executives made false statements which allowed the company to misrepresent key earnings between 2000 and 2005. Greenberg will pay $15 million in disgorgement and penalties without admitting any charges to “put these issues behind him,” while Smith settled for $1.5 million.