Wednesday, August 31, 2016

A word from the cheering section -- and a rejoinder

The Pakistan Observer has this editorial:
At long last, the Supreme Court on Monday endorsed the convictions awarded by military courts, including death sentences, rejecting appeals of sixteen convicts involved in acts of terrorism. The judgement has paved the way for ultimate hanging of jet-black terrorists. 
Saner elements within the legal fraternity have expressed satisfaction over the verdict but supporters of status quo are not happy and find faults with the outcome on frivolous grounds. There should have been no questions about legality of the sentences awarded by the military courts as these have been established through a Constitutional Amendment and an Act of Parliament but there are elements who oppose everything — even punishment to those who mercilessly kill innocent people. The idea of military courts for speedy trial of those involved in terrorism was conceived in the background that virtually no worthwhile sentence was awarded to any of those involved in terrorist incidents during the last several years. The existing legal system has miserably failed to deliver on this account and therefore, the military courts were envisaged for two years and the ordinary system was expected to reform itself during the intervening period. It is, however, regrettable that nothing of the sort has been done despite the fact that the two-year period is about to complete and there would be uncertainty as before to the advantage of terrorists and their facilitators. Similarly, there is also a justified impression that the judiciary is taking too much time in hearing appeals and deciding cases heard by military courts, which amounts to defeating the very objective of speedy trial of such cases. In this case too, the judgement was reserved in June and has been delivered after two months as if there was no emergency whereas the apex court itself has acknowledged that the country is in a state of war. The judiciary should have inward thinking reviewing its own performance on the yardstick of expectations of the people and the country. There is need for expeditious disposal of all appeals and extension of mandate of the military courts if the judicial system fails to offer a guaranteed and time-bound mechanism for disposal of cases of terrorism. (Emphasis added.)
Editor's query: how is "the ordinary system" supposed to "reform itself"? Stand by for an extension of the 21st Amendment -- or legislation making it permanent.

Rubber chicken case bounces back into view

HMAS Newcastle
A military justice maven in Australia has kindly provided the following information concerning the "rubber chicken" case previously referred to here.
The decision(s) favouring Able Seaman [Rowan Martin] Angre has been published (as of 29 August 2016) by Australian Defence Force Discipline Appeal Tribunal. 
The published reasons are effectively a decision of two halves: firstly, the Chief of Navy's application for a stay of the proceeding was refused as its grounds of res judicata and abuse of process failed; secondly, the Tribunal rejected the Chief of Navy's submission opposing Angre’s application to rely on documentary evidence in support of his appeal to the Tribunal. The Tribunal overruled the in limine objection by the Chief of Navy to the material on which Angre proposes to rely. Angre’s application for leave to appeal out of time has now been fixed to commence on 12 December 2016. 
Angre was granted leave to adduce and rely on before the Tribunal the transcript of the oral evidence given and the exhibits tendered before the Chief Judge Advocate sitting as Judge Advocate to the Court Martial convened to sentence the applicant and the parts of the three affidavits, including parts of the affidavit of LIEUT Ross Glover. Angre attacked on his convictions on the ground that a substantial miscarriage of justice had occurred because his guilty pleas had been induced by various improprieties attributed to his legal advisors and by the alleged failure of the Judge Advocate of the first Court Martial to ensure that he was fully apprised of the consequences of his pleas.
Angre's further application however to amend his grounds of appeal by adding the grounds [contained in the minute dated 1 July 2016] was refused. 
The decisions in Angre v Chief of Navy (No 1) [2016] ADFDAT 1, and Angre v Chief of Navy (No 2) [2016] ADFDAT 2, can be viewed here.

Prof. Vladeck's assessment of Al-Nashiri II

Prof. Steve Vladeck
Global Military Justice Reform contributor (and University of Texas Law School professor) Steve Vladeck has posted this insightful Lawfare take on the D.C. Circuit's recent decision in Al-Nashiri II. His bottom line:
At the end of the day, this is the aspect of Al-Nashiri II that I find the most baffling. Whatever the answer to the merits of Al-Nashiri's jurisdictional challenge actually is, isn't it better for the government, and not just the defendant, to have that question (whether the commissions can try pre-9/11 offenses such as the [USS] Cole bombing) resolved now? After all, if the government is right on the merits (that the commissions can try certain pre-9/11 offenses, such as the Cole bombing), then a ruling to that effect now would help to create ex ante legitimacy for everything that follows, and the case against Al-Nashiri can be tried against a backdrop of certainty over the military commission's jurisdiction. (To say nothing of the broader precedent it would set on the question of when the conflict with al Qaeda "began.") Indeed, for all of the criticisms of the commissions, it would be quite an arrow in the governnent's quiver if the D.C. Circuit were to hold that its jurisdictional theory vis-a-vis Al-Nashiri is consistent with both the Military Commissions Act and the Constitution.
And if the government is wrong on the merits, and the commissions lack jurisdiction to try Al-Nashiri for the Cole bombing, what the hell is the point of spending millions of dollars and tens of thousands of man-hours on a capital trial and potential death sentence that will have to be vacated on appeal? 
In sum, then, abstention in Al-Nashiri II doesn't make any sense doctrinally; depends more fundamentally upon a view of the commissions' track record that I just don't recognize; and does no favors whatsoever to the government, which will now (or, at least, some day) have to try Al-Nashiri under a lingering cloud of jurisdictional uncertainty (and, thus, illegitimacy) -- and with the specter of a potential appellate reversal for lack of jurisdiction looming over the entire proceeding. For folks who'd like some resolution of the commissions' legitimacy one way or the other, this is simply the wrong result. One wonders if a similar non-result is in the offing in al Bahlul, in which the ruling of the en banc D.C. Circuit on whether the commissions can try offenses other than international war crimes is due any day now.
Given Prof. Vladeck's analysis, it certainly seems that the government's interests would have been far better served by conceding that the court of appeals should reach and decide the merits. Why didn't it, aside from litigative momentum?

Tuesday, August 30, 2016


Femi Falana, SAN
Can the Nigerian Army declare that three civilians are "wanted"? Consider this article, and the argument advanced by leading human rights lawyer Femi Falana, SAN. Excerpt:
Mr. Falana said the army declaring the ‘suspects’ wanted “is ultra vires, illegal and unconstitutional in every material particular.” 
“Realizing that we are under a constitutional democracy which requires that the infringement of the rights of any citizen be justified in law, the army has relied on the provisions of the country’s anti terrorism legislation. 
“Since the wanted persons are not serving military personnel who are subject to service law they cannot be investigated or tried under the Armed Forces Act Cap A20 LFN, 2004,” he said.

D.C. Circuit abstains in al-Nashiri

The United States Court of Appeals for the District of Columbia Circuit has today upheld a decision of the district court. The court of appeals denied mandamus and abstained from review at this time of the Guantanamo military commission proceedings against Abd al-Rahim Al-Nashiri. In re Al-Nashiri, No. 15-1023 (Griffith, J.), can be found here. Judge David Tatel dissented.

Pakistani decision on military court challenges now available

The decision of the Supreme Court of Pakistan in Khan v. Federation of Pakistan, Civil Pet. No. 842 of 2016, is now available on the court's website. It can be found here.

Moshe Arens on the Azaria court-martial

Moshe Arens, a former Israeli Minister of Defence, has written this op-ed for Haaretz about the ongoing court-martial of Sgt. Elor Azaria. He writes, in part:
The temptation to make “holier than thou” pronouncements emphasizing the high moral standards of the IDF (probably unequaled by any other army) may be understandable but was mistaken. It turned what may have been an error committed by a young soldier doing his compulsory military service into a public relations festival that took months to wind down. That hopefully is now clear to all in retrospect. 
What happened in Hebron that day has no doubt happened many times to soldiers in the armies of democratic countries engaged in similar situations. It has certainly happened in the IDF in its long history of combating Israel’s enemies. Young soldiers may err in responding to situations that may involve danger which suddenly confronts them. During the recent months of violence, when Israelis were being attacked in the street by Palestinian terrorists out to kill, it may have happened more than once that an Israeli soldier or policeman or policewoman feeling threatened may have shot to kill a terrorist when wounding the terrorist might have been sufficient to incapacitate him or her.
It is not easy to judge a young soldier’s response under such circumstances. Such incidents should be investigated by the army, but should not be turned into public trials. The lessons learned should be transmitted to the soldiers who may face such situations in the future. There is no need for pronouncements to be issued to the public at large. 
At this point the results of Azaria’s trial have become almost irrelevant. Everybody who matters – the former and present defense ministers, the chief of staff, politicians and other notables – have already had their say, and they are not likely to retract their remarks regardless of the outcome. The damage has already been done.

The fact is that young soldiers having to contend with terrorist incidents sometimes are unable to take the right decision in a moment of stress. The IDF has nothing to be ashamed of regarding the behavior of its young soldiers in combat engagements. We would like to continue to serve as an example to others, but do not have to shame young inexperienced soldiers in order to do so.
Emphases added.

Editor's holier-than-thou comment: Mr. Arens in effect offers a free pass for young, inexperienced conscripts and treats a homicide trial as somehow having to do with shame rather than the due administration of justice in an armed force that is subject to the Rule of Law. That the known circumstances of Sgt. Azaria's case were a proper subject for a court-martial cannot seriously be doubted.

Monday, August 29, 2016

ICJ statement on Pakistani military courts decision

The International Commission of Jurists has issued this statement on today's decision by the Supreme Court of Pakistan:
Pakistan’s Supreme Court’s rejection of petitions by families of 16 people sentenced to death who complained of unfair trials in the country’s military courts seriously set back respect for human rights and the rule of law, the ICJ said today.
“The Supreme Court failed to use an important opportunity to show that human rights protect all people, including those who are accused of terrorist acts or other heinous crimes,” said Sam Zarifi, ICJ’s Asia Director. “Pakistan’s very serious problem with terrorism can only be addressed with more respect for human rights and the rule of law, not less, and certainly not through deeply flawed military tribunals that provide neither justice nor truth.” 
Families of sixteen civilians sentenced to death by military courts in secret proceedings challenged their convictions and sentences in the Supreme Court on fair trial grounds. In its 182-page judgment, a five-member bench Supreme Court headed by Chief Justice Anwar Zaheer Jamali held the petitioners had failed to prove the military violated their constitutional right to a fair trial. At convicts are now at imminent risk of execution. 
The ICJ is calling on the government of Pakistan to desist from executing these or other convicts, and to reinstate a moratorium on the death penalty it held from 2008 to 2014. 
“Trial of civilian suspects in military courts is anathema to human rights and international standards are clear that military courts should only have jurisdiction over military officers for military offences,” said Zarifi. “Pakistan’s military tribunals in particular offer nothing like a fair trial and should be immediately dismantled.”

Back to the future

Former French President Nicolas Sarkozy has proposed reestablishment of a state security court to deal with terrorism. This was last done under Charles DeGaulle. Details (and the text of the Decree of Apr. 27, 1961) can be found here.

Writ Petition No. 3315-P

Daily Pakistan adds details in this article concerning the Supreme Court's judgment in the military courts case:
The judgment authored by Justice Sheikh Azmat Saeed stated that the court was not persuaded to interfere with the impugned Order dated May 12 of the Lahore High Court, Bahawalpur Bench, dismissing the Constitutional Petition i.e. Writ Petition No. 3315-P of 2016, challenging the conviction and sentence of the Convict.
The order stated that the counsel for the Petitioner was unable to make out even the semblance of a case that the selection process in this behalf was tainted with malafides of facts or law or even otherwise was without jurisdiction or Coram non judice
“It appears from the record that the Convict, being subject to the Pakistan Army Act was tried for the offences triable by the Field General Court Martial (FGCM), which was convened and constituted in accordance with the law.” 
“No personal bias of any Member of the FGCM against the Convict has been established nor was the proceedings conducted mala fides or conducted in bad faith for a collateral purpose. It does not appear to be a case of no evidence or insufficient evidence nor the conclusions drawn appear to be blatantly unreasonable or wholly improbable.” 
“No illegality in the conduct of the trial exists. The Law and the Rules, more particularly, those protecting the rights of the accused were adhered to. No case of malice in law or coram non judice was made out,” the judgment stated. 
The court order further stated that the extraordinary circumstances necessitating the enactment of the 21st Constitutional Amendment Act and the Pakistan Army (Amendment) Act, 2015 are articulated in the Preambles thereof. 
The nature of the offence, the commission whereof the Convict in the instant case was accused is exactly the mischief sought to be suppressed by the aforesaid Enactments. The selection of the instant case for trial by the FGCM reflects the due fulfillment of the mandate and purpose of the law. 
“The examination of the record reveals that the FGCM was constituted and convened in accordance with the provisions of the Pakistan Army Act and the Rules framed there under, hence, the conviction and sentence do not appear to be coram non judice,” it added. 
The court observed that it was settled law that neither the High Court nor Supreme Court can sit in appeal over the conclusion drawn by the FGCM or analyze the evidence produced before it. 
However, the court has scanned the record in the instant cases. 
The evidence besides an eye witness account included a judicial confession, which was proved by the Judicial Magistrate, who recorded the same and appeared as a witness before the FGCM. 
The Convict never retracted from his confession. 
The Convict, on his own, in his statement before the FGCM, admitted his guilt.
In the circumstances, it cannot be said that the conclusions drawn by the FGCM are based on no evidence or insufficient evidence or otherwise improbable. 
The counsel for the Petitioner has not been able to persuade the court that the conclusion drawn, conviction recorded and sentence passed are not countenanced by law. Hence, no case of malice in law has been made out. 

Pakistan Supreme Court upholds military court convictions

The Supreme Court of Pakistan has ruled for the government in the cases challenging convictions by military courts under the country's 2015 21st Amendment. According to this Reuters account:
Lawyers for all 16 convicts contended their clients had been tried in secret, without access to legal counsel of their choice, and that their confessions had been recorded illegally. They also claimed they were denied access to military court records when preparing their appeals. 
The complaints echoed those made by lawyers and families of those convicted by the courts to Reuters. Two families and one lawyer said they had been threatened after filing appeals. Several told Reuters that confessions were "coerced" by the military. 
Sajid Ilyas Bhatti, the deputy attorney general representing the government, denied the appellants' claims, saying they had been accorded their rights.
He argued that military court proceedings were "immune from challenge on the ground of any alleged violation of the fundamental rights".
In its 182-page judgment, the court concluded that the appellants failed to prove wrongdoing on the part of the military authorities.
The judgment is not yet available on the court's website. The 21st Amendment expires in January. It was enacted because the civilian courts were ineffectual. No steps have been taken to improve the administration of justice in the civilian courts since then, so it unfortunately is to be expected that the amendment will be extended or made permanent.

Human rights law strongly disfavors the trial of civilians by military courts.

Sunday, August 28, 2016

The Buchris Case

Brig. Gen. (ret) Ofek Buchris 
The Jerusalem Post has an informative article about today's initial proceedings in the court-martial of retired IDF Brig. Gen. Ofek Buchris. The composition of the court is itself interesting:
Col. Judge Col. [sicOrli Markman presided over the hearing at the special military court at the Kirya military headquarters in Tel Aviv and set the arraignment date for September 29.

For the purposes of the trial, Markman will be promoted to the rank of brigadier-general, as will one other judge on the panel, retired Tel Aviv District Court judge and reserve military judge Zvi Garfinkle, so that they will not hold a lower rank than the defendant.

The third judge on the panel is Brig.-Gen. Yohai Ben-Yosef, who is not a judge, but an operational navy officer and former commander of the Haifa Naval Base – who was selected in part to give an operational perspective to the judges and partially because he is one of the few commanders who has no history with Buchris.
General Buchris resigned rather than face the possibility of a sentence that included a demotion, as noted here.

Where should this case be tried?

A retired IDF brigadier general accused of rape and sexual abuse is to be tried by court-martial. The offenses were committed before he retired. The three rape complainants were his subordinates. Should he be tried in a civilian court? Details here.

Decision tomorrow in Islamabad

The Supreme Court of Pakistan will hand down its decision tomorrow in a case challenging the death sentences adjudged against 16 civilians by military courts under the 21st Amendment. Details here.

Azaria trial resumes

The court-martial of Sgt. Elor Azaria has resumed in Israel. Gili Cohen has this report for Haaretz describing earlier prosecutions. Azaria's lawyers have claimed that he is a victim of selective prosecution. She writes:
"None of these and other such cases that have come before the court in recent years have reverberated like the Azaria case, with intense public debate, rallies and a campaign to raise money for the soldier’s defense and statements by politicians."

The M.P.'s Case is heard in High Court

The Uganda High Court has heard argument on an M.P.'s contention that he is not subject to trial by court-martial. From Sunday Vision's account:
Appearing before Court presided over by Justice Patricia Basaza, principal state attorney George Kallemera told court that the jailed Nakawa MP Michael Kabaziguruka is rightly charged before the Army court because he abetted serving officers to engage in Acts meant to overthrow the government.
"Kabaziguruka is charged under section 191(1g) of the UPDF Act which provides that any person including civilians shall be subject to military law in commission of service offences." Kallemera said. He asked court to refer back the case to the Army court to proceed with the trial of the legislator and his 22 co-accused. 
On the impartiality and independence of the court, Kallemera said that Kabaziguruka is not charged with political offences as he alleges but instead he is being charged with serious offences under the UPDF Act. 
Kallemera said that the president is the commander of the armed forces by virtue of the constitutional obligation but does not direct members of the Army court on the delivery of the decision as Kabaziguruka alleges. 
"For Kabaziguruka to allege that he will not be accorded to a fair hearing at the Army court, he must adduce incriminating evidence to justify his allegations." He said.

Friday, August 26, 2016

South Sudan military court convicts civilian -- no defense counsel

A military court in South Sudan has convicted a civilian of joining and aiding the enemy. The accused is reported to have had no defense counsel. Details here.

Choice of forum

Whether particular offenses by military personnel should be tried in military or civilian court is a continuing area of interest and, in some countries, controversy. Here is a case from Australia where an enlisted man is charged in civilian court for child pornography and other offenses committed on deployment in the Emirates. See what you think? Is Australian law misconceived by permitting these offenses to be tried in civilian court, or does the country deserve an ovation?

Thursday, August 25, 2016

Colombia's new peace with FARC

The New York Times reports on a deal between the Colombian government and the FARC rebels. Watch for details about the treatment of past offenses by both sides' personnel (think: "false positives"). This has been a big stumbling block in the past. How was it resolved? Will the issue wind up at the Constitutional Court?

Wednesday, August 24, 2016

A new twist in Uganda

Here's a strange argument. In a court-martial in which four civilians (include a Member of Parliament) are challenging jurisdiction, the prosecutor is argument that the issue should be decided in the first instance by the High Court -- the reverse of the usual argument in such cases. Details here.

Armenian life sentence for Russian soldier

An Armenian civilian court has sentenced Russian soldier Valeriy Permyakov to life imprisonment for murdering an Armenian family. Details here, in French. Permyakov had previously been convicted of military offenses in a Russian court-martial. It is unclear where he will serve his Armenian sentence.

Another case of the slows

Much military justice in fact involves administrative rather than court-martial proceedings. What if a nation's grievance body takes forever to decide on a grievance? And how long is too long? A South African court has held that two years is more than enough, according to this report.

In the United States, Congress has struggled to get the boards for correction of military and naval records to act more promptly on record-correction applications. The Administrative Procedure Act does afford a right of action for unreasonable delay, but the standards are both high and amorphous, and relief is rarely granted.

Silence is golden

The Supreme Military Court in Paraguay has been as silent as a tomb over charges against the head of the armed forces. Details here, in Spanish.

Welcome to Burma

This article from The Irrawaddy does not indicate whether the case described is before a civilian or a military court:
Police and military prosecutors have filed a lawsuit accusing Hla Phone, 38, of posting a digitally altered image on his Facebook account showing the military chief, Snr-Gen Min Aung Hlaing, wearing a traditional female skirt on his head. 
Another picture showed a caricature of former president and retired general Thein Sein with the words “we are murderers,” and a third showed the national flag imprinted on a shoe.

Why was this case tried in military court?

Another in the seemingly endless series. As reported here, an Indonesian military court tried this case:
The beating happened when HA and SKA, both 13, were riding pillion on a motorcycle driven by another friend, R. They passed [1st Cpl.] Saheri’s house in Cibinong, Bogor in West Java in December last year. The road was bumpy and when R tried to evade a hole, HA’s cup of ice tea flew at Saheri’s house, which was being renovated. 
During the trial, it was reported that Saheri exited the house, yelled at the three boys, screaming, “Thief! Thief! Thief!” while throwing rocks at them. 
In January, HA and SKA told a press conference at the Jakarta Legal Aid Institute that Suheri took them to a vacant lot near his house, tied them to trees and beat them. Locals who thought the boys were thieves also beat them, they said.
The prosecution had sought a four-month sentence; 1st Cpl. Saheri received an eight-month sentence from the three-judge court-martial. The report does not indicate whether the civilian assailants were tried in some other court.

Monday, August 22, 2016

Less than 5 months to sunset

If reforms are not introduced, military courts might get an extension, which, definitely, is not a permanent solution to dispose of terrorism cases and to make convictions.

Rizwan Shehzad, writing  here in  Pakistan's Express Tribune.

The 21st Amendment, which authorizes military courts to try civilians, expires in January.

AFT to MoD: no more frivolous appeals

The Chandigarh Bench of India's Armed Forces Tribunal has sent a strong message to the government: stop filing frivolous appeals or we will order exemplary costs to be paid by individual officials. Details here. Excerpt:
The AFT has strongly reacted to indiscriminate appeals filed by the MoD in such matters leading to delay in harvesting the fruits of litigation with the “progeny looking at empty coffers of their parents”. Recalling an SC decision, the Tribunal has reminded the government that they should become a responsible litigant and not file vexatious appeals.

The Tribunal’s order also held that such frivolous litigation leads to wastage of public time and injury to the disabled soldiers, which cannot be compensated in terms of money. “The dockets of the court are rising at the cost of the pockets of poor litigants and it becomes unbearable for them to approach the highest court of the land to defend such frivolous appeals and it causes untold miseries to them,” the Tribunal observed.

Saturday, August 20, 2016

10-judge military court convenes in DRC

A military court of the Democratic Republic of Congo is convening to try anti-Ugandan "Allied Democratic Forces" rebels for crimes against civilians. The accused, who number about two hundred, are Ugandans, Rwandese, Congolese, and Tanzanians. Details here.

Thursday, August 18, 2016

Worth the read

The U. S. Naval War College has an excellent journal--International War Studies, parts of which are available at their website.  I have previously pointed to their pieces.

Today I noticed two items in Volume 92, filed under DoD Law of War Manual Forum that may be of interest to our readers and correspondents.

Wednesday, August 17, 2016

Ugandan trial held in Somalia

The results are in in the Ugandan court-martial of peacekeepers on duty in Somalia. Nine soldiers, including two majors, have been convicted. The accused were selling mission fuel. Details here.

In-country trials have been encouraged in general as a means of showing host state populations the seriousness of troop contributing countries with regard to peacekeeper misconduct.

Jurisdictional challenge in Uganda

The Uganda general court-martial has given four civilians accused of treason until next Tuesday in which to file their briefs on whether the court has jurisdiction over them. One of the four is a Member of Parliament. Details here.

Tuesday, August 16, 2016

Malfeasance in Paraguayan military justice

On August 4th, 2016, former member of the Paraguayan military court, Col. Emiliano Rojas Ramos, testified against Supreme Military Court president Pastor Agüero Alder. Col. Rojas Ramos declared that the president tried to abuse his position of power with the goal of obtaining a vote against Col. Ramón Vivas, who has been imprisoned for more than seven months. More on this case here. 

A UK law firm shuts down

Public Interest Lawyers, a UK law firm, is shutting down. The firm, headed by Phil Shiner, had represented many Iraqi claimants and had come under severe criticism, especially by the Ministry of Defence and its allies. A Solicitors Disciplinary Tribunal inquiry against the firm was in the offing. The comments on this article are worth reading.

Disposition of collateral misconduct post-ICC action--jurisdictional issues

Open Democracy reports:
Germain Katanga, a warlord convicted by the International Criminal Court (ICC) for murder and other crimes, thought he was getting released from prison in January. But he was wrong. He had been found guilty by the ICC on charges linked to a 2003 attack on the village of Bogoro, in the eastern province of Ituri of the Democratic Republic of Congo (DRC) – and had served the end of his 12-year sentence in a Kinshasa jail, at his own request.
According to the writer there is " a backlog of cases of international crimes (war crimes, crimes against humanity and genocide) in the DRC courts."  And in an unsual step. 
DRC authorities, instead of freeing [Katanga], held him for trial on other charges that had not been dealt with by the ICC. This development represents not only yet another legal novelty for the ICC but also a potentially significant gearshift by the DRC justice system.
The writer notes that "The judicial process in the DRC against Katanga, the former head of the Ituri Patriotic Resistance Front, required a fairly intricate legal dance between the ICC, the DRC and Katanga’s defense team." 
The presiding judge of the DRC High Military Court, General Major Bivegete, told the International Center for Transitional Justice that the decision to prosecute Katanga highlighted “the importance of re-focusing on the primacy of the national jurisdiction to prosecute international crimes rather than on the complementarity of the ICC. The focus should not be on the ICC’s role in handling these crimes, but on the DRC’s responsibility to prosecute them.”
The writer concludes, "It is by building up a bank of credible cases that both national and international courts dealing with atrocious crimes will help to change attitudes of what is and is not acceptable conduct. The DRC prosecution of Katanga is an enormously welcome step on that journey of persuasion.

Is this correct, and is this correct for all of the other national jurisdictions challenged by allegations of war crimes and inhuman conduct during military operations?

Monday, August 15, 2016

New president of the Military Court of Appeal in Israel

Major General Doron Piles has been installed as president of the Military Court of Appeal in Israel. This report describes the ceremony, left, and some unfortunate comments by Defense Minister Avigdor Liberman:
During the ceremony, Liberman made an apparent reference to the case [of Sgt. Elor Azaria], telling Piles and three lower-ranking military judges at the ceremony they had to base their decisions not on “experts” but on “justice.” 
“I know it’s not easy, but sometimes — even when there’s background noise from outside and the interpretations of this or that expert — you need to know to ignore that and rule in accordance with justice,” Liberman said.
Minister Liberman's gratuitous comments will certainly become an issue down the road.

Maj. Gen. Shai Yaniv
Best wishes to the court's outgoing president, Major General Shai Yaniv, who has been named to the Tel Aviv District Court.

Prof. Vladeck on Supreme Court review of CAAF decisions

Prof. Steve Vladeck
Steve Vladeck, who over the summer shifted his colors from the Washington College of Law to the University of Texas School of Law (and is a contributor to this blog), has this post on Just Security about the jurisdictional issue raised by an amicus curiae in Akbar v. United States, a military capital case. He writes:
First, I aim to explain why I believe the brief is too clever by half–and why the Supreme Court does have the constitutional authority to entertain appeals qua writs of certiorari from CAAF. Indeed, as the below suggests, I don’t even think it’s a close question. Second, even if the Court’s jurisdiction over CAAF is a close question, that only bolsters the case for certiorari in Akbar–so the Justices can confront the issue squarely, rather than indirectly through non-precedential dispositions of cert petitions.
The post is recommended reading for anyone who is concerned with federal courts or court-martial appeals. The government has not responded to the amicus brief. Whether the Justices will heed Prof. Vladeck's call for them to resolve the jurisdictional issue directly rather than sub silentio of course remains to be seen. Similar calls (by the National Institute of Military Justice) for the Court to clarify whether, as a statutory matter, it has certiorari jurisdiction over ungranted issues in granted CAAF cases have gone unheeded.

Full disclosure: the Editor is counsel of record for the petitioner in Sullivan v. United States, a 2015 decision of the U.S. Court of Appeals for the Armed Forces that is the subject of a pending petition for a writ of certiorari.