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ICC delegation heading to Sudan to discuss case against al-Bashir

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Former president has been indicted by the ICC for war crimes, genocide and crimes against humanity.

An International Criminal Court (ICC) delegation is heading to the Sudanese capital to discuss the arrest warrants currently in place in relation to the conflict in the western region of Darfur, including former President Omar al-Bashir.

Al-Bashir, who was being held in jail in Khartoum after being removed by the military in April last year following months-long protests against his rule, is wanted by the ICC on charges of genocide and crimes against humanity in Darfur, in a conflict that began in 2003 and killed an estimated 300,000 people.

Led by prosecutor Fatou Bensouda, the delegation arriving on Saturday “will discuss cooperation between the International Criminal Court and Sudan regarding the accused, against whom the court has issued arrest warrants”, a statement from the office of Sudanese Prime Minister Abdalla Hamdok said.

The delegation would meet senior Sudanese officials during its stay in the country, which will last through October 21.

A spokesman from the ICC prosecutor’s office confirmed to the AFP news agency that “Bensouda and a delegation from her office will be in Khartoum for the next few days to discuss ICC-Sudan cooperation”.

A Sudanese government source told AFP Bensouda would “discuss the extradition” of al-Bashir and others to The Hague-based court.

The ICC accused al-Bashir in 2009 and 2010 of masterminding atrocities in his campaign to crush a revolt in the Darfur region, charges he has previously denied.

Two other former officials wanted by the ICC for crimes against humanity in Darfur – Ahmed Haroun and Abdel Raheem Muhammad Hussein – are also in detention in Khartoum.

In June, Ali Kushayb, the head of the Popular Defence Forces accused of carrying out some of the worst atrocities in Darfur, surrendered to the ICC and is now in custody.

A fifth man wanted by the ICC, rebel leader Abdallah Banda, remains at large.

Sudan’s transitional government has agreed al-Bashir would stand trial before the ICC. However, in a peace deal finalised earlier this month, the government agreed to set up a special court for crimes in Darfur and said al-Bashir should also face that court.

Hamdok told the Financial Times earlier this month that he had spoken with the ICC about the option of trying al-Bashir in Sudan, potentially in a “hybrid court”.

The 76-year-old former president is in custody in Khartoum’s tough Kober prison. He was convicted last December for corruption and is now on trial in Khartoum for the 1989 coup that brought him to power. If convicted, al-Bashir and 27 other co-accused could face the death penalty.

Al-Bashir’s lawyer has repeatedly denounced the charges against the former president as politically motivated.

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WHO urges world ‘don’t give up’ as COVID-19 pandemic resurges

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The World Health Organization (WHO) is urging people around the world not to give up in the fight against the coronavirus as cases surge once again, stressing the need for mask-wearing, physical distancing and other measures to avoid the kind of full-scale lockdowns that were imposed earlier this year.

WHO chief Tedros Adhanom Ghebreyesus told a virtual briefing that he understood the “pandemic fatigue” that some people were feeling but stressed the need to continue measures to contain a virus for which there remains no cure or vaccine.

“Working from home, children being schooled remotely, not being able to celebrate milestones with friends and family or not being there to mourn loved ones – it’s tough and the fatigue is real. But we cannot give up. We must not give up.”

Around the world, but particularly in Europe and the United States, new cases are surging beyond levels seen in the first wave of the pandemic back in March.

Data from Johns Hopkins University shows more than 43 million cases globally and nearly 1.2 million deaths from the disease, which first emerged in the Chinese city of Wuhan late last year.

In the US, where there has been resistance to mask-wearing and other measures to curb the spread of the infection, average deaths a day have risen by 10 percent in the last two weeks – to nearly 794 on Sunday, compared with 721 previously. It remains the world’s worst-affected country in terms of cases and deaths.

“We cannot have the economic recovery we want and live our lives the way we did before the pandemic,” WHO chief said. “We can keep our kids in school, we can keep businesses open, we can preserve lives and livelihoods. But we must all make trade-offs, compromises and sacrifices.”

WHO emergencies chief Michael Ryan also said countries should “not give up on trying to suppress transmission.”

He voiced particular concern about the situation in Europe, which in the past week accounted for 46 percent of global cases and nearly a third of global deaths.

“There’s no question that the European region is an epicentre for disease right now,” Ryan said.

Maria Van Kerkhove, the WHO’s technical lead on the pandemic, also voiced concern about the situation in Europe – and in particular a surge in admissions to hospital and rapidly filling intensive care units.

“In many cities we’re seeing beds filling up too quickly and we’re seeing many projections saying the ICU beds will reach capacity in the coming days and weeks,” she told Monday’s briefing.

Test, trace, isolate

Tedros stressed that governments also needed to do their part to break transmission – test extensively, isolate confirmed patients, trace their contacts and provide “supported quarantine” for all contacts.

He noted that such measures had previously been shown to suppress the outbreak.

On Sunday, US President Donald Trump’s chief of staff Mark Meadows told the CNN TV network that the administration’s focus had moved to mitigation, not stamping out the virus.

White House chief of staff Mark Meadows (left) said on Sunday that the US focus had moved away from trying to control the virus [File: Jacquelyn Martin/AP Photo]

“We’re not going to control the pandemic. We are going to control the fact that we get vaccines, therapeutics and other mitigations,” Meadows said, comparing COVID-19 with the seasonal flu, even though the disease caused by the coronavirus is far more deadly.

Asked about Meadows’ comments, Tedros said he agreed that focusing on mitigation and especially on protecting the vulnerable, was important.

“But giving up on control is dangerous,” he said.

Earlier, he noted that politics had also hindered the pandemic response in countries around the world.

“Where there has been political division at the national level; where there has been blatant disrespect for science and health professionals, confusion has spread and cases and deaths have mounted,” he said.

“This is why I have said repeatedly: stop the politicisation of COVID-19.”

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White House implements social distancing measures at Barrett’s swearing-in ceremony

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President Donald Trump delivers remarks at a rally during the last full week of campaigning before the presidential election on October 26, in Allentown, Pennsylvania.
President Donald Trump delivers remarks at a rally during the last full week of campaigning before the presidential election on October 26, in Allentown, Pennsylvania. Spencer Platt/Getty Images

Even as President Trump seeks to use Amy Coney Barrett’s confirmation to the Supreme Court as a political win, the issue hasn’t been as prominent during his rallies as some of his advisers had hoped.

On Monday, it took Trump 51 minutes to mention Barrett during his rally in Allentown, Pennsylvania. It was a similar story in Lititz, where Trump didn’t mention his third Supreme Court nomination until 54 minutes into his speech.

Trump raised the issue earlier on in his speech in Martinsburg. But generally the Supreme Court nomination has taken a backseat in his campaign speech and his political messaging.

Trump raised the nomination more often when it was in the news, including in September when crowds chanted “fill that seat” at Trump’s rallies. 

But since then it’s been replaced by issues like Trump’s gripes with the media, his attacks on Joe Biden and the litany of grievances against his opponents.

Some of the President’s political allies wish he would use the nomination more to galvanize supporters. They see the issue as overwhelmingly positive for Trump and question why it’s not being used more on the campaign trail.

When she was nominated, some even suggested Barrett would act in appearances as another running mate for the President.

But on the campaign trail, Trump has made his rallies mostly about himself — leaving little room in the spotlight for anyone else. 

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The radical implications of the Supreme Court’s new ruling on Wisconsin mail-in ballots

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The Supreme Court just handed down an order in Democratic National Committee v. Wisconsin State Legislature determining that a lower federal court should not have extended the deadline for Wisconsin voters to cast ballots by mail.

The ruling, which was decided by a 5-3 vote along party lines, is not especially surprising. The lower court determined that an extension was necessary to ensure that voters could cast their ballot during a pandemic, but the Court has repeatedly emphasized that federal courts should defer to state officials’ decisions about how to adapt to the pandemic. Monday night’s order in Democratic National Committee is consistent with those prior decisions urging deference.

What is surprising, however, is two concurring opinions by Justices Neil Gorsuch and Brett Kavanaugh, each of which takes aim at one of the most foundational principles of American constitutional law: the rule that the Supreme Court of the United States has the final word on questions of federal law but the highest court in each state has the final word on questions of state law.

This division of power is implicit in our very system of government. As the Supreme Court has explained, the states and the federal government coexist in a system of “dual sovereignty.” Both the federal government and the states have an independent power to make their own law, to enforce it, and to decide how their own law shall apply to individual cases.

If the Supreme Court of the United States had the power to overrule a state supreme court on a question of state law, this entire system of dual sovereignty would break down. It would mean that all state law would ultimately be subservient to the will of nine federal judges.

Nevertheless, in Democratic National Committee, both Gorsuch and Kavanaugh lash out at this very basic rule, that state supreme courts have the final say in how to interpret their state’s law, suggesting that this rule does not apply to most elections.

They also sent a loud signal, just eight days before a presidential election, that long-settled rules governing elections may now be unsettled. Republican election lawyers are undoubtedly salivating, and thinking of new attacks on voting rights that they can launch in the next week.

A potentially seismic reinterpretation of American election law

As Gorsuch notes in his concurring opinion, which is joined by Kavanaugh, the Constitution provides that “the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” A separate constitutional provision provides that “each State shall appoint” members of the Electoral College “in such Manner as the Legislature thereof may direct,”

According to Gorsuch, the key word in these constitutional provisions is “Legislature.” He claims that the word “Legislature” must be read in a hyper-literal way. “The Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules,” he writes.

The implications of this view are breathtaking. Just last week, the Supreme Court split 4-4 on whether to overturn a Pennsylvania Supreme Court decision that also would have allowed some mailed-in ballots that arrive after Election Day to be counted. Both Gorsuch and Kavanaugh were among the dissenters, though because there were no written opinions, neither explained why they would have thrown out the state supreme court’s decision.

We now know why. Based on Gorsuch’s reasoning in Democratic National Committee, it’s clear that both he and Kavanaugh believe the Supreme Court of the United States may overrule a state supreme court, at least when the federal justices disagree with the state supreme court’s approach to election law.

That is, simply put, not how the balance of power between federal and state courts works. It’s not how it has ever worked.

Nor is it correct that the word “legislature” should be read in the hyper-literal way Gorsuch suggests. For more than a century, the Supreme Court has understood the word “legislature,” as it is used in the relevant constitutional provisions, to refer to whatever the valid lawmaking process is within that state. As the Court held most recently in Arizona State Legislature v. Arizona Independent Redistricting Commission (2015), the word “legislature” should be read “in accordance with the State’s prescriptions for lawmaking, which may include the referendum and the Governor’s veto.”

But Gorsuch’s opinion suggests that this longstanding rule may soon be gone (again, as he put it, “state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules”). State supreme courts may lose their power to enforce state constitutions that protect voting rights. State governors may lose their power to veto election laws, which would be a truly astonishing development when you consider that every state needs to draw new legislative maps in 2021, and many states have Republican legislatures and Democratic governors.

The return of Bush v. Gore

Kavanaugh, for what it’s worth, takes a slightly more moderate approach in his concurring opinion. The Supreme Court of the United States, he writes in a footnote to that opinion, may overrule a state supreme court when the state court defies “the clearly expressed intent of the legislature” in a case involving state election law.

Just how “clear” must a state court’s alleged mistake be? The answer to that is unclear. But it is clear that Kavanaugh rejects the longstanding rule that he and his fellow federal justices must always defer to state supreme courts on questions of state law.

That position could also have profound implications. In 2018, for example, the Pennsylvania Supreme Court struck down gerrymandered maps drawn by the GOP-controlled state legislature. Kavanaugh’s position would allow the Republican-controlled Supreme Court of the United States to overrule such a decision.

Kavanaugh also lifts much of his reasoning from a disreputable source. Before today, the Supreme Court’s decision in Bush v. Gore (2000), which effectively handed the presidency to George W. Bush, had only been cited once in a Supreme Court opinion — and that one citation appeared in a footnote to a dissenting opinion by Justice Clarence Thomas, which was joined by no other justice.

But Kavanaugh quotes heavily from Chief Justice William Rehnquist’s concurring opinion in Bush, which also embraced an excessively literal approach to the word “legislature.” It appears that Bush v. Gore, arguably the most partisan decision in the Court’s history — and one that Kavanaugh helped litigate — is back in favor with key members of the Court.

It’s worth noting that the decision in Democratic National Committee was handed down literally as the Senate was voting to confirm incoming Justice Amy Coney Barrett, a staunch conservative who during her confirmation hearings would not commit to recusing herself from cases involving the 2020 election.

That means that last week’s decision allowing a Pennsylvania Supreme Court decision to stand could be very short-lived. That decision, after all, was 4-4, with Chief Justice John Roberts voting with the Court’s three liberals. With Barrett, the Court’s right flank may well be getting a fifth vote to toss out the state supreme court’s decision — and to order an unknown number of ballots tossed out in the process.

It’s unclear what immediate impact the decision in Democratic National Committee will have on the upcoming election. Last April, about 79,000 ballots arrived late during Wisconsin’s primary election but were counted anyway due to a lower court decision. The Supreme Court’s decision in Democratic National Committee will prevent similarly late ballots from being counted during the 2020 general election. The deadline for Wisconsin mail-in ballots to arrive is 8 pm on Election Day.

Though 79,000 ballots could easily swing an election, that’s only if it is close (in 2016, Trump won the state by a razor-thin margin of some 22,000 votes). A large enough margin could minimize the impact of the Court’s decision, and voters can ensure that their vote is counted by voting early enough.

But while this decision may not change the result of the 2020 election, its impact is still likely to be felt for years or even decades — assuming that Republicans retain their 6-3 majority on the Supreme Court. American election law has entered a chaotic new world, one where even the most basic rules are seemingly up for grabs. And the Supreme Court just sent a fairly clear signal that it may be about to light one of the most well-established rules on fire.


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