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Jordan: Fatwa Against Joining ISIS

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(Apr 16, 2015) On April 13, 2015, the General Iftaa Department of the Kingdom of Jordan issued a legal opinion, or fatwa, based on Sharia law prohibiting Jordanians from joining the Islamic State of Iraq and al-Sham (ISIS). The Iftaa Department is a part of the government that is tasked with issuing legal opinions related to Sharia law.

The fatwa declares ISIS to be a terrorist group, making it unlawful for individuals in Jordan to join the group. Individuals are also prohibited from joining other terrorist groups that shed blood, proclaim Muslims as infidels, and violate people's honor and property, because these acts violate the teachings of Islam. The fatwa asserts that Islam promotes tolerance and forgiveness, calls for mercy and love, and rejects terror and extremism, and it declares whoever joins such terrorist organizations has disobeyed God and his Messenger and strayed from the straight path and is manifestly and clearly in error. (Fatwa No. 3065, Jordanian Government website (in Arabic).)

The fatwa cites in support of its ruling a number of verses of the Koran and pronouncements of the Prophet Mohammad as reported by the most trusted chroniclers of his traditions. For example, it cites the pronouncement in which the Prophet Mohammed said "[d]o not kill an old man, an infant, a child, or a woman …" (3 SUNAN ABU DAWOUD, No. 2614, at 61 (in Arabic)) and the pronouncement in which the Prophet Mohammed said the killing of a person is among the most grievous of sins (5 SAHIH AL-BUKHARI, No. 5632, at 2230, (in Arabic)).

Author: Issam Saliba More by this author
Topic: Terrorism More on this topic
Jurisdiction: Jordan More about this jurisdiction

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Kenya: Proposal to Forcibly Repatriate Somali Refugees

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(Apr 16, 2015) Following the April 2, 2015, deadly attacks at Kenya's Garissa University carried out by members of the Somalia-based terrorist organization known as Al-Shabaab, which resulted in the killing of 147 students, Kenya announced that it wants the Dadaab refugee complex closed immediately and its residents, who are all Somalis, moved to Somalia. On April 11, 2015, Kenya's Deputy President William Ruto declared that the United Nations High Commissioner for Refugees (UNHCR) must close the Dadaab refugee complex within three months or "we shall relocate them ourselves." (Mark Hanrahan, Kenya Tells UN to Close Dadaab Refugee Camp After Garissa University Attack, INTERNATIONAL BUSINESS TIMES (Apr. 12, 2015).)

In response to this announcement, UNHCR released a statement expressing its concern that "abruptly closing the Dadaab camps and forcing refugees back to Somalia would have extreme humanitarian and practical consequences, and would be a breach of Kenya's international obligations." (Press Briefing Summary, UNHCR, UNHCR Statement on the Future of Kenya's Dadaab Refugee Camps (Apr. 14, 2015).)

Background

There are currently about 463,000 Somali refugees in Kenya. (2015 UNHCR Country Operations Profile – Kenya, UNHCR (last visited Apr. 14, 2015).)

The Dadaab complex, which was established in 1991, consists of five camps: Dagahaley, Hagadere, Ifo, Ifo II, and Kambios. (Dadaab Refugee Camps, Kenya: Kenya Support to the Spontaneous Voluntary Return of Somali Refugees from Kenya (Jan. 27, 2015), UNHCR, at 1.) Hosted by Garissa County, Dadaab is located 59 miles from Garissa town, the county's capital. (Dadaab Refugee Camps in Kenya: 16-31 March 2015, UNHCR (Apr. 3, 2015).) While Dadaab currently has 351,446 residents, at its peak in 2011 it hosted 486,913 refugees and asylum seekers. (Id.; UNHCR & IOM [INTERNATIONAL ORGANIZATION FOR MIGRANTS], JOINT RETURN INTENTION SURVEY REPORT 2014 13 (updated Feb. 25, 2015).) All of the refugees and asylum seekers in Dadaab are Somali citizens. (Kenya: Dadaab, UNHCR (last updated Feb. 28, 2015).)

According to Human Rights Watch, despite the Kenyan government's insistence that Somali refugees in Kenya are responsible for the threats to the country's security, no evidence has been established linking Somali refugees to the recent string of terrorist attacks in Kenya. (Gerry Simpson, Dispatches: After Garissa Carnage, Kenya's Backlash Begins, HUMAN RIGHTS WATCH (Apr. 13, 2015).)

The Refugees Act

Refugee issues in Kenya are governed by the 2006 Refugees Act, which incorporates international instruments that the country has signed. (UNHCR & IOM, supra at 21.) The Act prohibits refoulement of refugees and asylum seekers, stating:

No person shall be refused entry into Kenya, expelled, extradited from Kenya or returned to any other country or [be] subjected [to] any similar measure if, as a result of such refusal, expulsion, return or other measure, such person is compelled to return to or remain in a country where –
(a) the person may be subject to persecution on account of race, religion, nationality, membership of a particular social group or political opinion; or
(b) the person's life, physical integrity or liberty would be threatened on account of external aggression, occupation, foreign domination or events seriously disturbing public order in part or the whole of that country. (Refugee Act No. 13 of 2006, § 18, Cap. 173 (Dec. 30, 2006), Kenya Law website.)

Tripartite Agreement and Voluntary Repatriation

UNHCR, in collaboration with the governments of Kenya and Somalia, is in the midst of implementing a pilot voluntary return program; in 2013, Kenya signed an agreement with the government of Somalia and UNHCR on voluntary repatriation of Somali refugees in Kenya. (Tripartite Agreement Between the Government of the Republic of Kenya, the Government of the Federal Republic of Somalia and the United Nations High Commissioner for Refugees Governing the Voluntary Repatriation of Somali Refugees in Kenya, 2013 (Nov. 10, 2013), REFWORLD.) This agreement provides that the return of refugees to Somalia "shall take place in conformity with international law pertaining to voluntary repatriation." (Id. § 10.)

However, according to a 2014 survey, only 2.6 % (9,627 persons/2,228 households) of the refugees in the Dadaab complex expressed interest in returning to Somalia in the near term, i.e., within two years. (UNHCR & IOM, supra at 9.) In December 2014, UNHCR launched a pilot repatriation program to three locations in Somalia: Luuq, Baidoa, and Kismayo. (UNHCR Statement on the Future of Kenya's Dadaab Refugee Camps, supra.) UNHCR chose these locations in large part for their relative safety and had planned to repatriate about 10,000 refugees as part of the pilot program. (Mark Yarnell & Alice Thomas, Between a Rock and a Hard Place: Somali Refugees in Kenya, REFUGEES INTERNATIONAL (Sept. 9, 2014), at 6.) Thus far, UNHCR has repatriated 442 households (2,048 individuals), with the largest group going to Kismayo. (Dadaab Refugee Camps in Kenya: 16-31 March 2015, supra.)

Previous Attempt at Forced Repatriation

In December 2014, Kenya enacted a law aimed at forcing out of Kenya tens of thousands of Somali refugees and asylum seekers. It sought to accomplish this by amending the Refugees Act and putting a ceiling on the number of refugees that may be present in the country at a time. The law stated that "… [t]he number of refugees and asylum seekers permitted to stay in Kenya shall not exceed [150,000] persons." (The Security Laws (Amendment) Act, 2014, § 48 (Dec. 19, 2014), The Presidency website.) Although this law did not expressly target Somali refugees, given that the 463,000 Somali refugees in Kenya account for some 71% of the total number of refugees in the country, the application of this law would have greatly impacted their status. (2015 UNHCR Country Operations Profile – Kenya, supra.)

However, in response to multiple legal challenges to the constitutionality of the law, on February 23, 2015, the Constitutional and Human Rights Division of the High Court of Kenya at Nairobi found the provision unconstitutional. (Coalition for Reform and Democracy (CORD) & Others v. Republic of Kenya & Others (Feb. 23, 2015), ¶ 427, REFWORLD.) The Court noted that placing a cap on the number of refugees and asylum seekers that may be present in Kenya would invariably result in the expulsion of hundreds of thousands of refugees. (Id.) The Court held that this would "violate the principle of non refoulement, which is a part of the law of Kenya and is underpinned by the Constitution." (Id.)

Author: Hanibal Goitom More by this author
Topic: Human rights More on this topic
 International affairs More on this topic
 Refugees More on this topic
 Terrorism More on this topic
Jurisdiction: Kenya More about this jurisdiction

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South Korea: Controversial Anti-Corruption Law Promulgated

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(Apr 16, 2015) On March 26, 2015, President Park Geun-hye of South Korea promulgated the Anti-Corruption Law (Act No. 13278 (Mar. 27, 2015), Korea Ministry of Government Legislation website (in Korean)). The Law won bi-partisan approval in the National Assembly on March 3, 2015, despite controversy over its possible violations of the country's Constitution. (Park Sanctions Controversial Antigraft Bill, KOREA HERALD (Mar. 26, 2015).)

The Anti-Corruption Law is applicable to journalists and educators in public and private schools, in addition to public officials. It imposes a punishment of imprisonment not to exceed three years, or a fine of up to five times the amount accepted, on persons convicted of accepting money or monetary equivalent valued at more than one million won (about US$900) from one person in one installment, regardless of whether such compensation was in exchange for favors or related to the person's work. (Anti-Corruption Law, art.8.) For gifts worth one million won or less, a fine of up to five times the gift's value will be imposed. (Anti-Corruption Law, arts. 8 & 23.)

The passage of the Law generated strong criticism on many counts. On March 5, 2015, the Korean Bar Association, on behalf of Korea's Official Gazette, the Korean Bar Association Newspaper, and the Korean Journalists Association, filed a petition with the Constitutional Court to contest the Law. (Jong-min Kim, Korean Bar Association Filed a Constitutional Petition for Kim Young-ran Law, DAILY HANKOOK (Mar. 5, 2015) (in Korean).) The petition alleges, among other complaints, that article 2 of the Law, which makes the Law applicable to journalists, restricts the freedom of the press and the right to equal treatment that are protected under the Constitution. (Id.)

The suit further alleges that article 5 of the Law, which defines what constitutes illegal solicitation of favors, is unconstitutional because the clause is too vague for ordinary citizens to understand. The Korean Bar Association explained in the complaint that "this law may have a chilling effect on the ordinary contact between a journalist and his source, reinforce journalists' self-censorship, and be misused by the government as a means of controlling the press." (Id.) The petition also points out that "the law violates journalists' right to equal treatment by defining public officials to include journalists, a group that is completely different in character." (Id.)

In addition, the complaint argues that the Law's requirement for public officials to report the spouse's receipt of illegal graft and to be subject to the related criminal penalty for failure to report such favors violates the principles of freedom of conscience and of liability with fault. (Anti-Corruption Law, arts. 9, 22, & 23.)

The Law is called the Kim Young-ran Law because Kim Young-ran had initially proposed the legislation. Kim is a former Supreme Court Justice and Chairwoman of the Anti-Corruption and Civil Rights Commission. (Park Sanctions Controversial Antigraft Bill, supra.) Amid the controversy, Kim declared that she did not find the inclusion of journalists and teachers in the Law "unconstitutional" because their work is largely public in nature. (Opinion: Originator Speaks Up, KOREA TIMES (Mar. 10, 2015).) She also stated that the controversy and the confusion created by the Law, which she translated as "resistance" to it, reflects "the 'sentiment of corruption' within us." (Id.)

Prepared by Kyewon Noh, Intern, Law Library of Congress, under the supervision of Sayuri Umeda, Senior Foreign Law Specialist.

Author: Sayuri Umeda More by this author
Topic: Corruption More on this topic
Jurisdiction: South Korea More about this jurisdiction

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Egypt: American Citizen Sentenced to Life Imprisonment for Terrorism-Related Crimes

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(Apr 16, 2015) On April 11, 2015, the Criminal Court of Cairo found an American citizen of Egyptian descent, Mohamed Sultan, guilty of multiple offenses. The Court, headed by Chief Justice Mohamed Nagi Shihata, imposed the penalty of life imprisonment on Sultan after finding him guilty of the following crimes: 1) joining a terrorist organization; 2) organizing a terrorist cell; 3) inciting violence; 4) disturbing public order by spreading chaos; 5) planning to storm public facilities and police stations; and 6) planning to damage private property and places of worship. (Death Penalty to the Spiritual Guide of the Brotherhood and Life Imprisonment? to 37 Other Members of the Organization, AL-SHOROUK (Apr. 11, 2015) (in Arabic).)

Prior to sentencing him, the prosecutor charged Sultan with being a member of the Muslim Brotherhood organization, a group classified by the Egyptian government as a terrorist organization. Sultan's father, who is a high-ranking member of the Muslim Brotherhood, was sentenced by the same court to the death penalty. Moreover, the prosecutor charged the younger Sultan with disseminating false information to foreign media, thereby harming Egypt's image and national security. (Id.)

Response of Sultan's Family to the Court Decision

Sultan and his family deny all the aforementioned charges made against him and also deny that he joined the Muslim Brotherhood. Sultan's family argues that he traveled to Egypt while he was studying at Ohio State University after receiving news that his mother, who still lives in Egypt, had cancer. They also claim that he did not disseminate any false information to foreign media. According to the family, Sultan did not participate in the demonstrations held by the Muslim Brotherhood protesting the ouster of former President Mohamed Morsi; however, he acted as a personal translator for foreign correspondents during those demonstrations. (Meredith Hoffman, Egyptian Court Sentences American Citizen Journalist to Life in Prison, VICE NEWS (Apr. 11, 2015).)

Sultan's family demands the deportation of Sultan based on Law 140-2014. (The Son of a Member of the Muslim Brotherhood Organization Might Face the Same Destiny as Peter Greste, AL-TAHRIR (Apr. 14, 2015) (in Arabic).) Law 140-2014 grants the Egyptian government the legal authority to deport to their home countries foreigners who are convicted in Egyptian courts. The Law was applied in the case of Peter Greste, the Australian journalist who was convicted in 2014 of disseminating false information against Egypt and aiding a terrorist organization. (Law 140-2014, 46 (bis) AL JARIDDAH AL RASMYAH (Nov. 13, 2014) (in Arabic).)

Procedure to Appeal the Decision

Under the Code of Criminal Procedure, Sultan and his father have the right to file a petition with the Court of Cassation to repeal the decisions of the Criminal Court against them and order a retrial of their cases. If the Court of Cassation finds that there was a breach of law during the trial process or in the interpretation of the Criminal Code by the judges, it will void the previous sentence issued by the Cairo Court of Appeal (in this case, the Cairo Criminal Court). The Court of Cassation would then return the case to the Criminal Court for adjudication by a different panel of judges. (Code of Criminal Procedure (1937, as last amended by Law No. 95, 2003), art. 446, MOHAMOON.COM (in Arabic); see also George Sadek, Egypt: Criminal Court Gives Head of Muslim Brotherhood a Death Sentence, GLOBAL LEGAL MONITOR (Mar. 19, 2015).)

Author: George Sadek More by this author
Topic: Crime and law enforcement More on this topic
Jurisdiction: Egypt More about this jurisdiction

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Israel: Court Rejects Request for Recognition of Contract-Based Parenthood

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(Apr 15, 2015) On April 1, 2015, Israel's Supreme Court, in a unanimous decision by an extended bench of seven justices, rejected a petition by an unmarried woman with a muscle atrophy disease to adopt a child born to a surrogate mother. The child was born in Israel from a donated sperm and a donated egg that had been fertilized and transplanted in the surrogate, the petitioner's niece, in India prior to the niece's return to Israel to carry her pregnancy to term. (Request for Family Appeal No. 1118/14 Anonymous v. Ministry of Welfare and Social Services, STATE OF ISRAEL: THE JUDICIAL AUTHORITY (Apr. 1, 2015) (in Hebrew).)

The petitioner chose to engage in this complex transaction in view of her inability as an unmarried woman to adopt a child under Israel's Adoption of Children Law, 5741-1981 (SEFER HAHUKIM (BOOK OF LAWS, the official gazette) 5741 Issue No. 1028, p. 293, as amended). This Law authorizes adoption only for married couples, subject to two exceptions. An unmarried person may adopt a child who has been previously born to or adopted by his/her spouse or a child whose parents are deceased relatives of the adoptee. (Id. § 3.) The Israeli Center for Person with Disabilities joined the petition, claiming that the petitioner's inability to have a child reflects a common problem among people with disabilities, who are prevented under Israeli law from being parents. (Request for Family Appeal No. 1118/14, ¶ 3.)

In rejecting the petition, Justice Neal Hendel determined that the law applicable to the circumstances of the case was Israeli and not Indian law. (Id. ¶¶ 5-6.) Israeli law, according to Hendel, recognizes parenthood on the basis of four types of ties: genetic, physiological, legal (adoption processed under the Adoption Law); and derivative (based on a spousal or family relationship with the child's parent). Hendel determined that the petitioner did not qualify as having any of these links. (Id. ¶¶ 7-9.)

Justice Hendel further rejected the petitioner's claim that, in the absence of the express recognition of a contractual relationship among the parenthood ties recognized by the Israeli legislature, the type of parenthood alleged to exist in this case would have to be recognized by a court based on a judicial decree. (Id. ¶ 26) According to Justice Hendel, given the complexity of the circumstances of the case, the important status of parenthood in society, and the potential broader implications of a ruling on the matter, it would be improper to provide a judicial instead of a statutory response to the questions raised. The recognition of parenthood under the circumstances of the case, he decided, may impact social norms and requires that possible abuses such as child trafficking be addressed. The Justice concluded that such recognition, therefore, should not be left to private, unsupervised initiatives; rather, it needs to be dealt with by a legislative solution. (Id.)

Author: Ruth Levush More by this author
Topic: Adoption and foster care More on this topic
 Children's rights More on this topic
 Families More on this topic
 Health More on this topic
Jurisdiction: Israel More about this jurisdiction

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