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U.N. Human Rights Council: Gaza War Crimes Commission to Be Formed

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(July 16, 2014) On July 23, 2014, the United Nations Human Rights Council (UNHRC) adopted a resolution after concluding a special session on human rights in the Occupied Palestinian Territory. The resolution included the decision "to establish an independent, international commission of inquiry to investigate all violations of international humanitarian law and international human rights law in the Occupied Palestinian Territory." (Press Release, Office of the High Commissioner for Human Rights (OHCHR), Human Rights Council Establishes Independent, International Commission ofInquiry for the Occupied Palestinian Territory (July 23, 2014).) The investigation is to include East Jerusalem and, the resolution stated, is to focus on violations "particularly in the occupied Gaza Strip, in the context of the military operations conducted since 13 June 2014" the commission is to report its findings to the UNHRC's 28th session. (Id.; see also Dominic Yobbi, UN Rights Council to Form Commission to Investigate War Crimes in Gaza, PAPER CHASE (July 25, 2014).)

Twenty-nine states voted in favor of the resolution, one, the United States, voted against it, and 17 states abstained. (Press Release, supra.) In the resolution, the UNHRC condemns Israel's failure to end its "prolonged occupation of the Occupied Palestinian Territory, including East Jerusalem" and also condemns "the widespread, systematic and gross violations of international human rights and fundamental freedoms arising from the Israeli military operations carried out in the Occupied Palestinian Territory since 13 June 2014 that may amount to international crimes." (Id.) At the same time, the UNHRC censured "all violence against civilians wherever it occurred, including the killing of two Israeli civilians as a result of rocket fire." (Id.) It urged the "immediate cessation of Israeli military assaults throughout the Occupied Palestinian Territory," "an end to attacks against all civilians, including Israeli civilians," and the immediate and full cessation of Israel's "illegal closure of the occupied Gaza Strip." It further called for the provision by the international community of humanitarian assistance and services to the Palestinians there. (Id.; for the text of the resolution, see Human Rights Council Resolution S-21/1 Adopted on 23 July 2014 Ensuring Respect for International Law in the Occupied Palestinian Territory, Including East Jerusalem, OHCHR website [first item under "Documents" section of the webpage].)

Author: Wendy Zeldin More by this author
Topic: Human rights More on this topic
 War crimes More on this topic
Jurisdiction: U.N. Human Rights Council More about this jurisdiction

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Iceland: Icelandic Bankers Jailed for Fraud

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(July 16, 2014) In a decision issued by the Reykjavik district court on December 12, 2013, two bank directors were among the parties imprisoned for fraud in connection with the banking crisis of 2008. (Dómur: Héraðsdóms Reykjavíkur 12. desember 2013 í máli nr. S-127/2012 [Judgment: Reykjavík District Court December 12, 2013 in case no. S-127/2012], Icelandic Courts' website.) The men were part of a scheme in which Sheikh Mohammed Bin Khalifa Bin Hamad Al Thani of Qatar made a five percent share purchase in the Kaupthing Bank with money borrowed from the bank itself. (Richard Milne, Icelandic Bank Pair Jailed for Five Years, FINANCIAL TIMES (Dec. 12, 2013) [registration required]; Iceland Jails Former Kaupthing Bank Bosses, BBC NEWS (Dec. 12, 2013).)

The men were convicted under the General Penal Code (Almenn hegningarlög) and the rules on market abuse found in the Icelandic Securities Act (Lög um Verðbréfaviðskipti). (Almenn hegningarlög, No. 19 (Feb. 12, 1940, as last amended Apr. 9, 2013), Althingi [Iceland's Parliament] website; General Penal Code No. 19, February 12, 1940 (as amended up to Mar. 1, 2004) [in English], Iceland Ministry of the Interior website; Lög um Verðbréfaviðskipti, No. 8 (June 26, 2007), Althingi [Iceland's Parliament] website; Act on Securities Transactions, No. 108/2007 [in English], Iceland Ministry of Industries and Innovation website.)

The Icelandic banking crisis led to the establishment of a Special Investigation Commission whose mission was to investigate the dealings of the Icelandic banks and Members of the Iceland Parliament. The results of the inquiry, summarized in English, can be found on the Althingi webpage on the Commission report.

Prepared by Elin Hofverberg, Foreign Law Research Consultant, under the supervision of Peter Roudik, Director of Legal Research.

Author: Peter Roudik More by this author
Topic: Banks and financial institutions More on this topic
 Crime and law enforcement More on this topic
 Criminal procedure More on this topic
 Fraud and financial crimes More on this topic
Jurisdiction: Iceland More about this jurisdiction

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France: Government Must Apply Law Requiring Anonymous Job Applications

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(July 16, 2014) The Conseil d'Etat, France's highest jurisdiction for administrative matters, recently ordered the government to implement a 2006 anti-discrimination law requiring employers of more than 50 employees to anonymize job applications. (CE [Conseit d'Etat], 9 juillet 2014, M.A... et autres, Nos. 345253, 352987, & 373610.)

The Court's July 9, 2014, decision is mainly based on a provision in a 2006 law that requires companies employing more than 50 workers to rely on anonymized job applications and résumés in order to help prevent discrimination in hiring. (Loi No. 2006-396 du 31 mars 2006 pour l'égalité des chances (1) [Law No. 2006-396 of March 31, 2006, for Equality of Opportunities (1)], art. 24.) After this law was adopted, the executive branch was supposed to issue regulations to ensure its implementation, but it has not yet done so. (Guillaume Guichard, Le gouvernement sommé de mettre en oeuvre le CV anonyme [Government Told to Implement the Anonymous C.V.], LE FIGARO (July 9, 2014).)

The failure of the government to adopt implementing regulations led a law student, a political group, and a civil rights advocacy group to file complaints before the Conseil d'Etat. (Id.) The judges found that the reasonable timeframe within which the government would be expected to implement a law had lapsed, and they ordered the Prime Minister to issue the necessary implementation decrees within six months. (CE, 9 juillet 2014, M.A... et autres, supra.) In response to this decision, the government declared that it was "determined to ensure the best application of the 2006 law against discrimination in hiring," and that it would convene a working group to study how to promote non-discriminatory recruitment methods. (Guichard, supra.)

Author: Nicolas Boring More by this author
Topic: Administrative law and regulatory procedures More on this topic
 Discrimination More on this topic
 Employee hiring More on this topic
Jurisdiction: France More about this jurisdiction

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Indonesia: Law Amended to Give Lawmakers Added Protection

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(July 16, 2014) The Indonesian House of Representatives (DPR), on July 8, 2014, adopted an amendment to the 2009 Legislative Institution Law, also called the MD3 Law. (Law No. 27, 2009 [in Indonesian], DPR website; Margareth S. Aritonang, New Law Shields House Members from Corruption Investigations, JAKARTA POST (July 14, 2014).) This Law sets rules for the operations of the People's Consultative Assembly and the Regional Representatives Council, in addition to the DPR, the main legislative body.

Among the changes adopted in the amended Law is a revision to the method of selecting the Chair of the House. Whereas previously the Chair came from the party that won the most seats in the legislative election, the amended legislation calls for the entire House to elect a Chair. (Basten Gokkon, Joko Reaffirms Plans to Reform Civil Service, JAKARTA GLOBE (July 14, 2014); Ryan Dagur, Indonesian Activists Claim New Law Will Hamper Graft Probes: Groups Call for Judicial Review of Amendment That "Protects Lawmakers," UCA NEWS (July 15, 2014).)

Additionally, the new Law shields members of the House from investigations into their behavior. It determines that before law enforcement agents can summon legislators to answer questions, they must obtain approval from the House Honor Tribunal. The Tribunal will have 17 lawmakers from each political faction in the legislature; summonses by law enforcement would become invalid if not approved by the Tribunal within 30 days. Further, under article 245, the Law prevents questioning of House Members of what they do, whether inside or outside the House. (Aritonang, supra.)

Criticisms of the Amended Law

The provisions on investigation of legislators were criticized by Indonesian Corruption Watch (ICW, a non-profit organization), whose Abdullah Dahlan noted on July 13, 2014, that it "will allow lawmakers implicated in criminal cases to buy time [and perhaps] avoid the legal process." (Id.) He added that his organization is concerned that during the 30-day period, suspects might destroy evidence or even escape. (Dagur, supra.) ICW and other groups are planning a judicial challenge to the amended legislation. (Id.)

The Law will also allow lawmakers to have closed-door meetings, without public disclosure of the proceedings. This aspect caught the attention of Hendrik Rosdinar from the Indonesian organization Civil Society Alliance for Democracy. He said, "[t]he new law reflects lawmakers' poor commitment to accountability and transparency." (Aritonang, supra.)

The Corruption Eradication Commission and the Amended Law

Indonesia's anti-corruption authority, the Corruption Eradication Commission (KPK), has stated that prosecutions of House Members could continue despite the recent enactment by the legislature. KPK's chair, Abraham Samad, said that the KPK would follow its own rules in dealing with corruption and would still be able to summon House Members in graft cases, without considering the House Honor Tribunal. (Id.)

He clarified that the National Police and the Attorney General's Office could be impacted by the new legislation, but that the KPK, in his view, does not have to "abide by the MD3 Law. Even if the law is implemented, the KPK only follows the Corruption Law and the KPK Law." (Id.; Law on Eradication of the Criminal Act of Corruption, Law No. 31/1999, as amended by Law No. 20/2001; Law on the Commission to Eradicate Criminal Acts of Corruption [the KPK], Law No. 30, 2002, all available at Asset Recovery Knowledge Centre website.)

Furthermore, according to KPK Deputy Chairman Busyro Muqoddas, the new Law violates the principle of equality before the law. He said, "[t]he position of lawmakers is equal to other state officials. The House has tried to violate the principle of equality before the law by protecting its lawmakers' law enforcement institutions." (Aritonang, supra.)

Defense of the Amendment

The changes included in the new Law were defended by Marzuli Alie of the House of Representatives, who argued that corrupt legislators will not be protected and that "[w]ritten approval from the Honorary Council [before investigations] is needed so that law enforcement officers … can't conduct an investigation just when they feel like it against members of the DPR." (Dagur, supra.)

Author: Constance Johnson More by this author
Topic: Government ethics and transparency More on this topic
 Legislative bodies More on this topic
Jurisdiction: Indonesia More about this jurisdiction

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Israel: Precedent-Setting Decision on Rabbinical Court

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(July 16, 2014) Israel's High Court of Justice, with an extended bench of seven justices, recently voided a decision by the Supreme Rabbinical Court instructing a mother to enable the circumcision of her infant son against her will. (HCJ 8533/13 Anonymous v. Supreme Rabbinical Court [in Hebrew], State of Israel: The Judicial Authority website (June 29, 2014).)

Facts of the Case

The mother argued that she and her son's father had previously agreed not to circumcise their son, and that the father introduced the demand to circumcise their son only at the first hearing of their divorce proceedings. The Netanya regional rabbinical court, where the proceedings took place, accepted the father's request. The court ordered the mother to enable her son's circumcision within seven days following its decision or face a significant fine that would be increased for every day of delay. (Opinion of Deputy Supreme Court President, Justice Miriam Naor, ¶ 3, id.)

The mother had appealed the regional court's decision to the Supreme Rabbinical Court, which rejected her arguments and determined that because the origin of the circumcision ceremony is in Halacha (Jewish law), "it is inconceivable… that this subject will be given to the discretion of a civilian court, which is not familiar with the substance of Halacha." (Id. ¶ 6.) The mother petitioned the Supreme Court, sitting as a High Court of Justice, to quash the rabbinical courts' decisions based on their allegedly being rendered without authority (For information on the High Court's jurisdiction to void rabbinical court decisions, see Basic Law: The Judiciary, § 15(d)(4), Knesset website.)

Ruling

Circumcision as a Matter Relating to Guardianship

Accepting the mother's petition, Justice Naor, in a majority opinion, determined that under the Capacity and Guardianship Law 5722-1962, both parents are the natural guardians of their minor children. Accordingly, they have "the duty and the right to take care of the needs of the minor … ." (Capacity and Guardianship Law 5722-1962, §§ 14-15, 16 LAWS OF THE STATE OF ISRAEL [LSI] 106 (5722-1961/62, as amended.)

Previous Supreme Court precedent decisions interpreted the term "needs of the minor" as including material, emotional, and medical needs. Circumcision, according to Justice Naor, is included in the "needs of a minor" because

[i]t is well known that the vast majority of the Jewish population, and especially in Israel, views circumcision as an important and meaningful ceremony, which symbolizes the national-Jewish affiliation of an individual, with no necessary connection to religious beliefs. This is one of the most important commandments in Judaism, for the existence of which many fought throughout Jewish history and also died. … The majority of the Jewish public in Israel, both religious and secular, circumcise their sons; this does not need proof In view of this background, it appears that circumcision is acceptable to the public in Israel and may respond to various needs of the minor, including social needs. (Opinion of Deputy Supreme Court President, Justice Miriam Naor, ¶ 17, supra.)

As such, according to Naor, circumcision is a matter that should be decided by the parents based on the presumption that they act for the benefit of the minor. In the absence of mutual consent, a parent may seek judicial determination of the issue in accordance with section 25 of the Capacity and Guardianship Law, which applies to matters related to guardianship when the parents do not reach consensus. In determining matters related to needs of a minor, the court concerned must reach decisions based on the best interest of the child. (Id. ¶ 18.)

Jurisdiction over Judicial Determination of Circumcision of Minors

According to Naor, as a matter that relates to the "needs of the minor," circumcisionis within the jurisdiction of the family court and not the rabbinical court. In accordance with section 1 of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953 (7 LSI 139 (5713-1952/53)), the rabbinical court has the authority to adjudicate matters of marriage and divorce of Jews in Israel who are nationals or residents of the state. Under section 3, however, "where a suit for divorce between Jews has been filed in a rabbinical court… [it] shall have exclusive jurisdiction in any matter connected with such suit, including maintenance for the wife and for the children of the couple." (Id.)

According to Naor, unlike in matters related to custody of children, child support, and division of marital property, determination of which is required by the changing circumstances created by the divorce, the circumcision of a child is not a matter that arises because of the dissolution of marriage and therefore is not connected to a suit for divorce. (Opinion of Deputy Supreme Court President, Justice Miriam Naor, ¶ 29, supra.)

Other Considerations Related to the Circumcision Decision

Additionally, Naor held, the right to consent to a child's circumcision is connected to the parent's general right to guardianship and not to the child's physical custody. Moreover, both parents have a right to express their opinions on the subject of circumcision, regardless of whether or not they are married, divorced, or cohabiting. This reasoning also supported the view that the determination of whether or not to circumcise a child is not required for an effective dissolution of a marriage or for resolution of matters that need to be resolved because of the divorce. (Id. ¶ 30.)

Naor added that a decision on circumcision is a complex and sensitive one. It involves a physical irreversible act on the body of a child who is not a party to the divorce proceedings. It also involves "questions related to basic rights such as freedom of religion or freedom from religion as well as social and cultural considerations." (Id.) She concluded,

… in a conflict between parents on this issue, which is subject to [application of] the principle of the benefit of the child, the determination [of whether to circumcise the child] should not be made in connection with the divorce proceedings between the child's parents. This is especially true in this case, where [due to delay] the circumcision would require an unusual medical procedure of anesthesia or sedation. (Id.)

The Final Determination of the High Court of Justice

Accordingly, the High Court of Justice determined that the rabbinical court did not have jurisdiction to adjudicate the matter; all decisions to force the mother to comply with the requirement to circumcise her son were therefore voided. The High Court held, however, that the father had a right to file a suit on this matter at the family court. (HCJ 8533/13, p. 50.)

Author: Ruth Levush More by this author
Topic: Health More on this topic
 Judiciary More on this topic
Jurisdiction: Israel More about this jurisdiction

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