Category Archives: Justice

The Extradition Saga of Kim Dotcom

The hunger with which US officials pursue copyright or general intellectual property violations is insatiably manic. The degree of that hunger is expressed by the now suspended, and most likely defunct Trans-Pacific Partnership, an attempt to further globalise the policing of IP laws in favour of corporate and copyright control.

Then come the vigilantes and those singing different, discordant tunes suggesting another alternative. One such figure was Kim Dotcom, founder of Megaupload and on the US Department of Justice wanted list for some years, along with company co-founders Mathias Ortmann, Bram van der Kolk and Finn Batato.

His case is doing the torturous rounds in New Zealand, where the German-born defendant remains based, still seeing whether he can elude US authorities on the subject of inventive alleged violations.  It has become one of the largest criminal copyright cases in history, beginning after Dotcom’s dramatic arrest in 2012 at his New Zealand mansion at the hands of dozens of agents, both NZ and US, along with two helicopters.

The New Zealand court decided at the start of this week that the 2015 decision of the lower court favouring the extradition of Kim Dotcom and his co-defendants be upheld.  Justice Murray Gilbert of the High Court seemed rather tricky with his reasoning.  For one, he admitted “that online communication of copyright protected works to the public is not a criminal offence in New Zealand under s. 131 of the Copyright Act.”

Dotcom and his legal team would have felt rather thrilled with that. The prosecution plank had collapsed.  Case closed.  Except, of course, that it hadn’t.  Justice Gilbert proceeded to assume a mighty pulpit and preach despite the absence of a NZ copyright offence in this case.

Much of this lay in the prosecutorial effort to expand the range of offences, a tactic the Dotcom team termed “massaging”.  In widening the net, acts amounting to internet piracy were suggested, including racketeering, money laundering, to name but a few charges additional to the issue of copyright infringement.  Many coalesced around the issue of conspiracy, a favourite, catch-all provision US prosecutors have loved to employ.

The Crimes Act, in other words, had loomed into judicial consideration with its full force, its “general criminal law fraud provisions” doing their bit to undermine the case of the appellants, despite Dotcom’s assertion that this was purely a copyright matter.  Read along with s. 101B of the Extradition Act itself, the judge agreed “that the appellants are eligible for extradition on all counts for which their surrender is sought.”

That wilful infringement supposedly committed by Dotcom did something devastating to the copyright holder: deprive it “of something to which it may be entitled.”  (The amount alleged is staggering: $500 million worth.  Dotcom is alleged to have netted $175 million in criminal proceeds.)  It followed that the alleged conduct on count 2 constituted “the offence of conspiracy to defraud in terms of art II.16.”

Article II, paragraph 16 of the extradition treaty between the US and NZ outlines the grounds for extradition:

Obtaining property, money or valuable securities by false pretences or by conspiracy to defraud the public or any person by deceit or falsehood or other fraudulent means, whether such deceit or falsehood or any fraudulent means would or would not amount to a false pretense.

Digital activists have a brat element to them, an impetuousness that follows the crooked over the straight. They are often necessary boons excavating to find deficiencies in existing systems, rather than spotty criminals to be potted.

In Dotcom’s case, a cloud storage provider is being prosecuted, an aspect that has grave implications in the broader internet domain.  For one, it suggests a self-policing dimension to the operations of such an enterprise. Dotcom’s claims there, rather reasonably, are that policing the behaviour of 50 million daily users of a site is hardly credible, though efforts were made to detect copyright infringements. For all that, the US DOJ would still claim that there was a mere “veneer of legality” to such operations.

As Dotcom’s barrister, Ron Mansfield, said after Justice Gilbert had down his judgment, “The High Court has accepted that Parliament made a clear and deliberate decision not to criminalise this type of alleged conduct by internet service providers, making them not responsible for the acts of their users.”

Dotcom’s legal counsel, Ira Rothken, put it such last year: “The second you put a cloud storage site on the Internet, whether it’s Google or Megaupload, there’s going to be good users and bad users.  There’s going to be folks who are going to infringe, there are going to be folks who are saving wedding photos and using that for fair use.”

But the legal assessment of Dotcom’s case suggests that prosecuting authorities will be favoured, and that powerful corporate demands expressed through state intermediaries and lobbies, will continue to have their day. Any effort to battle this case out in a US setting is most likely, as Rothken asserts, going to take place on an “unfair playing ground“. Next stop: the NZ Court of Appeal.

Elor Azaria Sentence: “No justice for Palestinians”

Human rights groups and Palestinian leaders have condemned what they called the “extremely lenient” punishment of Elor Azaria, the Israeli army medic who was filmed executing a severely wounded Palestinian in Hebron last year.

On Tuesday, a military tribunal sentenced the soldier to 18 months in jail and a demotion, nearly a year after he shot a bullet from close range into the head of 21-year-old Abdel al-Fattah al-Sharif.

There has rarely been a trial in Israel where the judges have been under such relentless – and mostly hostile – scrutiny. That appeared to be reflected in their sentencing, more than a month after they found Azaria guilty of manslaughter.

The sentence was much lower than the three to five years demanded by the prosecution, and far below the maximum tariff of 20 years. One of the three judges dissented, recommending two and a half to five years.

“Azaria should have received a life sentence. This will not act as a deterrence to other trigger-happy soldiers,” Jamal Zahalka, a Palestinian member of the Israeli parliament, told Al Jazeera. “There are thousands of other soldiers who have killed Palestinians, but are not on trial. Israeli pilots dropped bombs on schools and hospitals in Gaza [in the 2014 war]. Why are they not on trial, too?”

He called Israel a “democracy of guns”, adding: “The real author of the crimes against Palestinians is the Israeli state. By putting one individual on trial, Israel hopes to confer legitimacy on the whole apparatus of state-sanctioned killing.”

Cold-blooded execution

Even before the sentencing, Azaria’s lawyers had said they would appeal the verdict. If that fails, they have vowed to seek a pardon. Education Minister Naftali Bennett immediately backed a pardon for Azaria.

For Palestinians, the trial was viewed as little more than a farce. The family of Sharif said that Azaria had carried out a “cold-blooded execution”, not manslaughter. They added: “The sentence he received is less than a Palestinian child gets for throwing stones.”

Azaria shot Sharif more than 10 minutes after the Palestinian had been severely wounded by other soldiers at a checkpoint and was lying helpless on the ground.

Samir Zaqout, a spokesman for the al-Mezan Centre for Human Rights, based in Gaza, said the lenient sentence came as “no surprise”.

“Palestinians don’t expect any kind of justice from the Israeli legal system,” he told Al Jazeera. “The lives of Palestinians are judged as worthless.”

Addameer, a group defending Palestinian prisoners’ rights, also condemned the sentence, noting that it was less than many Palestinians received for belonging to an organisation proscribed by Israel.

“The message this sends to other soldiers and police officers who extrajudicially execute Palestinians is that their actions will not be seriously accounted for and that impunity will persist,” it said in a statement sent to Al Jazeera.

Extreme anti-Arab views

Despite the clear-cut evidence, military prosecutors last year rejected a murder charge and settled on the lesser manslaughter indictment, amid a wave of support for Azaria from Israeli politicians and the public alike.

Polls showed most Israeli Jews agreed with Azaria’s refusal to show remorse: they believed he acted appropriately and had been unfairly singled out for prosecution.

During the trial, it emerged that Azaria, 20, held extreme anti-Arab views, which he expressed regularly on social media. In one Facebook post during the 2014 war on Gaza, he called for the massacre of every Palestinian in the small coastal enclave.

He also admitted to spending a great deal of time in Hebron with the followers of the late Meir Kahane, a rabbi whose virulently anti-Arab Kach party was outlawed in 1994 after a supporter, Baruch Goldstein, shot 29 Palestinians in Hebron’s Ibrahimi mosque.

None of that damaged Azaria’s popularity with a large swath of the Israeli Jewish public. The Israeli media designated him as “everyone’s son”.

Worries about morale

Despite prosecuting Azaria, the army was reported to be worried about the damage the case was doing to morale.

Local media revealed that, after Azaria’s conviction last month, a senior commander approached his father to persuade the family not to appeal, reportedly offering them an 18-month jail term in return. In the end, that was what the judges imposed, even without a deal.

The army is reportedly concerned about research showing a recent sharp drop in the proportion of combat soldiers who believe their service is more important than non-combat roles. There is a similar fall among those who believe their commander will back them if they get into trouble.

Riots erupted outside the courtroom early last month when Azaria was found guilty. Israeli Prime Minister Benjamin Netanyahu was among the senior politicians who called for a pardon for Azaria even before the conviction, implying that the trial itself was a miscarriage of justice.

Sari Bashi, the Israel-Palestine director of Human Rights Watch, said that her organisation’s research showed that too often, soldiers adopted a shoot-to-kill policy towards Palestinians, including when their lives were not in danger or when less force could be used.

“It is important that Israel’s political and security leaders repudiate the shoot-to-kill rhetoric,” she told Al Jazeera.

Secret offer to family

Delivering the verdict last month, the court dismissed Azaria’s claim that he acted in self-defence. They concluded that he sought revenge on Sharif for a knife attack on a checkpoint in the occupied Palestinian city a short time before.

The three judges, who received a flood of death threats afterwards, had to be issued with bodyguards. But while sentencing was expected a few days later, the panel seemed in no hurry to conclude the case.

It emerged that the extra time had been exploited by the army to try to reach a settlement with Azaria behind the scenes.

Azaria’s battalion commander, Guy Hazot, secretly approached his father, Charlie Azaria, to offer lenient treatment if his son expressed regret for his actions and promised not to appeal the conviction. Charlie Azaria recorded the conversation.

According to the Jerusalem Post newspaper, the move by Hazot was designed “to end the public relations headaches and social divisions the case has created in the army and throughout the country”.

Hazot’s actions raised serious questions about the military courts’ independence, said Nadeem Shehadeh, a lawyer with Adalah, a legal rights group in Israel. “I have never heard of a case where army commanders went over the court’s head to offer a sentencing deal,” he told Al Jazeera. “It is highly irregular.”

Appeal or pardon?

Azaria now has various options to avert or minimise prison time. He could request the head of the army’s central command reduce his sentence. But more likely, he will launch an appeal. His lawyers have said they will argue that the guilty verdict was influenced by statements last year from former Defence Minister Moshe Yaalon and army commanders that there was clear evidence Azaria shot Sharif.

If that fails, Azaria can ask for a pardon from the army chief of staff, Gadi Eisenkot. And if he refuses, Azaria’s final option is to submit a request for a presidential pardon.

According to polls, some 70 percent of Israeli Jews support a full and immediate pardon.

There will be nothing exceptional if Azaria is reprieved. He will simply be the latest in a long line of security officials who demonstrably killed Palestinians, but were exonerated by a system that treats such murders with impunity, noted Zahalka.

In perhaps the most notorious such case, known as the Bus 300 affair, several security officials were pardoned after they were convicted of killing two Palestinians in 1984. The officers smashed the pair’s skulls with rocks after they had been arrested for hijacking a bus.

Following their pardons, one, Ehud Yatom, went on to serve in the Israeli parliament. In 2001, the then-prime minister, Ariel Sharon, appointed him as his anti-terror adviser, until the courts overruled the decision.

Rare prosecution

More often, however, soldiers face no trials at all, even where there is overwhelming evidence that they committed crimes, said Shehadeh. “We see lots of cases like Azaria’s, where soldiers injure or kill Palestinians at checkpoints, but usually nothing happens. In Azaria’s case, it was filmed and there was no choice but to prosecute him.”

In fact, Azaria is the first soldier to be tried for manslaughter since 2004, when Taysir Hayb, a Bedouin sniper, killed British solidarity activist Tom Hurndall in Gaza. Hayb was sentenced to eight years and served six and a half.

Usually, when the army is forced to prosecute, human rights groups have noted, the proceedings are dragged out and plea deals arranged to spare soldiers trials for more serious crimes.

Last month, Ben Dery, a border police commander, had his original charge of manslaughter reduced to negligent use of a firearm in a deal with prosecutors. Dery was filmed shooting dead 17-year-old Nadim Nuwara during a protest at a West Bank checkpoint in May 2014, even though the youth posed no danger. Three other Palestinians were hit with live rounds, one of whom also died from his wounds.

The prosecution accepted Dery’s claim that he had mistakenly loaded a live round into his rifle when he intended to shoot a rubber bullet. Nuwara’s family called the deal a “trick” and “shame on the Israeli justice system”.

Zahalka said: “There will never be real justice for Palestinians from the Israeli courts. The proper address is the International Criminal Court, where Israelis must be put on trial for war crimes.”

• First published in Al Jazeera

Restricting People’s Use of Their Courts

In not so merry old medieval England, wrongful injuries between people either were suffered in silence or provoked revenge. Cooler heads began to prevail and courts of law were opened so such disputes over compensation and other remedies could be adjudicated under trial by jury.

Taken across the Atlantic to the colonies, this system – called tort law or the law of wrongful injuries – evolved steadily to open the courtroom door until the nineteen seventies. It was then that the insurance industry and other corporate lobbies began pushing one restriction after another through state legislatures– not restrictions on corporations’ rights to sue, but restrictions on the rights of ordinary people to have their day in court.

Lawmakers, whose campaign coffers were  stuffed by corporate lobbyists, were not  concerned about advancing their passing rules that arbitrarily tied the hands of judges and jurors—the same judges and jurors who were the only people to see, hear and evaluate individual cases in their courtrooms. Legislation imposing caps on damages – as with California’s $250,000 lifetime cap on pain and suffering – was especially cruel for those victims of medical malpractice who were  young, unemployed or elderly and thus do not  have significant enough wage losses to receive sufficient damages.

In recent decades, the nonsense about our society being too litigious  (except for business vs business lawsuits) has become even more extreme. Not only do we file far fewer civil lawsuits per capita than in the 1840s, according to studies by University of Wisconsin law professors, but jury trials have been declining in both federal and state courts, with trials down by 60% since the mid-1980s.

My father used say that “if people do not use their rights, they will over time lose their rights.”  This truism brings us to a new book by University of Connecticut Law Professor Alexander Lahav, with the title In Praise of Litigation (Oxford University Press). The title invokes the necessity of legal recourse in a society whose ordinary people are being squeezed out of their day in court, being denied justice, and are becoming cynical enough to want to get out of jury duty—a right for which our forebears demanded from King George III.

Professor Lahav makes the point we should have learned in high school, or at least college. The right to litigate is critical to any democratic society. Imagine living in a country where no one can sue powerful wrongdoers or the government. We have names for countries like that. They’re called dictatorships or tyrannies.

Here is author Lahav’s summary: “Litigation is a civilized response to the difficult disagreements that often crop up in a pluralist society. The process of litigation does more than resolve disputes: it contributes to democratic deliberation. This is the key to understanding what this process is supposed to be about and what should be done to improve it. By appreciating the democratic values people protect and promote when they sue – enforcement of the law, transparency, participation and social equality – reformers can work toward a court system that is truly democracy promoting.”

It would be more reassuring if more judges reflected those words. Were that the case, they would be fighting harder to expand the shrinking court budgets (about two percent of state budgets) that are increasingly causing civil trials to be deferred or courtrooms to be temporarily closed. Tighter budgets lead judges to excessively pressure lawyers to settle or go to arbitration. The latter is a malicious inequity between consumers, workers and other people unequal in power vis-a-vis big corporations like Wells Fargo, Exxon/Mobil, Pfizer and Aetna, who force consumers to sign fine print contracts that limit people’s rights to use the courts.

The usual sally against praising civil litigation is the claim of too many frivolous suits. Whenever Richard Newman, the Executive Director of the American Museum of Tort Law, hears that asserted, he asks for examples. They are not forthcoming. For good reason. Litigation is expensive; lawyers have to guard their reputations and judges, who largely lean to the conservative side, are in charge of their courtrooms. They are quite ready to approve motions to dismiss a case or summary judgments.

We have to take a greater interest in our courts. They are open to the public for a reason. Students need to visit them and understand what the burdens are on courts, and how our civil justice system can be improved. When I ask assemblies of students if they have ever visited a court as a spectator, hardly one in ten raise a hand.

Courts should not be places of case overloads and long delays. They should be welcoming temples of justice where judge and jurors engage in reasoned deliberation for the advancement of justice as part of a functioning democracy. The demands for justice are such in our country that courts should have more judges, more juries and more trials.

As the great judge, Learned Hand, wisely wrote “If we are to keep our democracy, there must be one commandment: Thou shalt not ration justice.”