Thursday, June 22, 2017

Under UN pressure, Republic of Congo to withdraw troop contingent from CAR

The UN Secretary General has issued the following note to correspondents:
The UN Secretariat has concluded a review of the deployment of uniformed personnel from the Republic of Congo in the UN Mission in the Central African Republic, MINUSCA. 
The UN recognises the importance of the sub-region in the resolution of the crisis in the Central African Republic and expresses its appreciation for the constructive role played by the Republic of Congo, and President [Denis] Sassou-Nguesso as international mediator during the Transition and after the election of President [Faustin-Archange] Touadera, and looks forward to their continued political engagement to bring stability to the Central African Republic. 
The review of the deployment of uniformed military personnel from the Republic of Congo found that the nature and extent of existing allegations of sexual exploitation and abuse, in their totality, point to systemic problems in command and control. These problems have also been compounded by issues related to the preparedness, overall discipline, maintenance of contingent owned equipment, and logistical capacity of these troops. 
The outcome of the review has been shared with the authorities of the Republic of Congo, who have decided to withdraw their military personnel deployed in MINUSCA. 
The Government of the Republic of Congo has reiterated its commitment to United Nations peacekeeping and stability in the Central African Republic. The Secretariat is working with the Republic of Congo and MINUSCA on the modalities for a speedy withdrawal that will have the least impact on the mission's operational requirements and ability to implement its mandate. 
The United Nations stands ready to assist the Republic of Congo authorities by identifying factors in the areas of leadership and command, performance, conduct and readiness, to enable them to address these gaps and for Republic of Congo military contingents to be eventually considered for future deployment to United Nations peacekeeping operations. 
Failures identified with the military contingent are not reflected by the performance of the police contingent from the Republic of Congo, also deployed with MINUSCA. Therefore, the police contingent will be retained. Nonetheless, the Republic of Congo authorities have been requested to urgently inform the United Nations of accountability measures they have taken regarding the one substantiated allegation of sexual abuse involving a Republic of Congo police personnel.
Highlighting added. 

Wednesday, June 21, 2017

New JAG for Canadian Forces

A new Judge Advocate General has been named for the Canadian Forces. Details here.
Defence Minister Harjit Sajjan announced the appointment of Captain (Navy) Geneviève Bernatchez as the fifteenth Judge Advocate General (JAG) of the Canadian Forces and the first woman to hold this position. Captain (Navy) Bernatchez will be promoted to the rank of Commodore and succeed Major-General Blaise Cathcart who will retire later this year, according to the Department of National Defence. A formal change of appointment ceremony will take place on June 27 in Ottawa.
Congratulations to Captain Bernatchez on her selection and forthcoming promotion -- and to General Cathcart on his forthcoming retirement.

Tuesday, June 20, 2017

Office of the High Commissioner speaks out on lèse majesté cases in Thailand

The Office of the High Commissioner for Human Rights has issued the following statement concerning lèse majesté cases in Thailand:
We are very concerned by the rise in the number of lèse majesté prosecutions in Thailand since 2014 and the severity of the sentencing, including a 35-year jail term handed down last Friday against one individual. A Thai military court found Wichai Thepwong guilty of posting 10 photos, videos and comments on Facebook deemed defamatory of the royal family. 
He was sentenced to 70 years in jail, but the sentence was reduced to 35 years after he confessed to the charges.
This is the heaviest sentence ever handed down under Article 112 of the Criminal Code, which is also known as the lèse majesté law. The previous heaviest sentences were handed down in 2015, when three people were jailed for between 25 and 30 years by military courts on the same charges. The offence carries a penalty of three to 15 years in jail for each charge of insulting the monarchy. 
Between 2011 and 2013, 119 people were investigated for insulting the monarchy. Over the last three years, between 2014 and 2016, that figure has more than doubled to at least 285. 
Statistics provided by Thai authorities show there has been a sharp fall in the number of people who have been able to successfully defend themselves against lèse majesté charges. From 2011-13, around 24 percent of people charged with the offence walked free, but over the next three years, that number fell to about 10 percent. Last year, that figure was only 4 percent.
While our Office appreciates the complexity and sensitivity of the issue surrounding lèse majesté in Thailand, we are deeply troubled by the high rate of prosecutions and the courts’ persistence in handing down disproportionate sentences for the offence. All people have the right to freedom of expression, including when it comes to criticising public figures.
Imprisonment of individuals solely for exercising the right to freedom of expression constitutes a violation of Article 19 of the International Covenant on Civil and Political Rights (ICCPR), which Thailand acceded to in 1996. In March 2017, the UN Human Rights Committee, which reviews implementation of the ICCPR, concluded that Thailand should review Article 112 of the Criminal Code to bring it into line with Article 19 of the Covenant. 
We also have concerns about the conduct of the trials since the military coup of 2014. Most of the lèse majesté cases have been tried before a military court, and the hearings have been closed to the public. Most of the accused have been denied bail and some held for long periods in pre-trial detention. While we welcome the Government’s decision in September 2016 to cease hearing future lèse majesté cases in military courts, we reiterate our call to authorities to apply this is to all pending cases, retroactively. 
Our Office calls on the Thai Government to immediately amend the lèse majesté law to bring it in line with international human rights standards and to review all cases brought under Article 112 of the Criminal code.
Emphasis added.

Monday, June 19, 2017

Unusual DuBay order in the Barry case

The U.S. Court of Appeals for the Armed Forces today issued the following important order in United States v. Barry, No. 17/0162/NA (footnote omitted):
On consideration of Appellant’s petition for reconsideration of this Court’s order of April 27, 2017, summarily affirming the decision of the United States Navy-Marine Corps Court of Criminal Appeals, Appellant’s motions to appoint a special master, to supplement the record, and for oral argument, and Appellee’s motion to remand for new post-trial processing, we note that Appellant has presented an affidavit from the convening authority averring that he felt pressure from senior civilian and military leaders to approve the findings in this case. In order to resolve this allegation of unlawful command influence, we conclude that further factfinding must be conducted pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). Accordingly, it is, by the Court, this 19th day of June, 2017,
That the petition for reconsideration is granted; this Court’s order of April 27, 2017, is vacated; and the petition for grant of review is granted on the following issue: 
In addition, the motion to appoint a special master is denied; the motions to supplement the record are granted; the motion for oral argument is denied; and the motion to remand for new post-trial processing is denied. 
The record of trial is returned to the Judge Advocate General of the Navy for remand to a convening authority other than the one who convened the court-martial concerned and one who is at a higher echelon of command. This convening authority shall order a factfinding hearing pursuant to DuBay. The presiding officer at this hearing shall be a military judge from an armed force other than the United States Navy or United States Marine Corps. See Rule for Court-Martial 503(b)(3). This military judge shall inquire fully and make findings of fact and conclusions of law related to the alleged unlawful command influence matter underlying the granted issue. At the conclusion of the DuBay hearing, the military judge will return the record directly to this Court for further review of the granted issue under Article 67, Uniform Code of Military Justice, 10 U.S.C. § 867 (2012).
The hearing shall be completed and the record returned to this Court no later than November 1, 2017.

Sunday, June 18, 2017

Judicial independence in Spanish military courts

The General Council of the Judiciary (CGPJ) in Spain annulled an order issued by the Central Military Tribunal calling on military judges to advise their commanders about on-going investigations. Last February the Central Military Tribunal approved an order, which was not limited to setting forth work hours or attention to the public, but included instructions to the judges as to how they should carry out their investigations.  It required these judges to go to the military installations where the death of a member of the military occurred, or any other serious act, which might have appeared to have been a military offense, even if in the final analysis it was not.

The most grievous part of the order was that it instructed the judges to contact "the chief of the unit in charge of the military place where the offense occurred" once they learned of the act.  They had to inform the commander of the unit of the existence of a judicial investigation, even if it was declared secret, before knowing whether the commander was implicated in the possible offense.

This order was criticized because it appeared to be an "interference" in the work of the military judges, whom it converted into mere "subordinates" of the commander, placing at risk the independence of their investigations.

The CGPJ did not issue an opinion about the hypothetical disciplinary responsibility of the members of the Central Military Tribunal, but it annulled the order because it considered it issued by an "organ manifestly incompetent" to have done so.

Facebook, blasphemy and military courts

A military court in Pakistan has sentenced a man to death on charges that include blasphemy. Details here. The News on Sunday reports:
Earlier in the month, 30-year-old Taimoor Raza was sentenced to death, via a military court, for allegedly committing blasphemy on Facebook. This is the first instance of a sentence being handed down, for an alleged crime, committed on social media. Further troubling is the fact that Raza was tried, not through regular courts, but via a military court, because the charge sheet brought against him included counter-terrorism offences as well.

Israeli AG opines on permissibility of warrantless consent search of soldiers' cellphones

Haaretz reports that Attorney General Avichai Mendelblit (a former Military Advocate General), has issued an opinion supporting the prosecution's appeal of a Military Court of Appeal decision requiring a warrant to search soldiers' cellphones even if the owner consents to the search. Excerpt:
Mendelblit write the opinion regarding an appeal filed by military prosecutors to the Supreme Court on conducting searches of soldiers' phones without a warrant.
Military prosecutors want the court to overrule the military court of appeals, which ruled in November 2016 that extracting information from a soldier’s phone using laboratory techniques, based only on the soldier’s consent, was illegal.
Mendelblit wrote that the military court of appeals made a significant mistake since the suspect’s permission to carry out the cellphone search provides the authority to do so, even without a judicial search warrant.
Once someone under investigation agrees to such a search, they waive their right to privacy, said Mendelblit. If the suspect gives informed consent (with or without limitations), a search warrant becomes unnecessary. The use of a search warrant is not the only way to conduct a legal search of a cellphone, added the attorney general.
The Supreme Court is due to hear the government's appeal tomorrow.

Saturday, June 17, 2017

Follow-up on the news

Ex-Major Zaidi Ahmad, RMAF
He's back in the news again: former Royal Malaysian Air Force Major Zaidi Ahmad, who went into politics in Penang after having been court-martialed for blowing the whistle in the "invisible ink" case, figures in a recent incident reported here in The Star.

Forced retirements in Nigeria

A furor has broken out in Nigeria over the forced retirement of 38 Army officers and the slow-rolling of action on their objections. According to this op-ed by Sani Tureta in This Day:
It has been over a year and their appeals have not been heard by the President or Acting President, it makes you wonder if incompetence is at play. It would be very disgraceful for the Nigerian Army if the retirements are reversed by the courts and it is confirmed that even just one of the retired officers is innocent and was never queried, charged, tried or found guilty of any offence. This is because [Chief of Army Staff] Gen [Tukur Yusuf] Buratai said he gave an opportunity for all the officers to be questioned in line with the army’s administrative procedures. This will therefore assign grave doubts to the credibility of the retirements and would be a sad confirmation of the observations of human rights bodies. We should have utmost regard and respect for our laws, rules and regulations. The arbitrariness and impunity of the past should not be perpetrated any longer in the Nigerian Army. It is distasteful and no longer fashionable.

Accused UK military personnel charged for legal representation

In the United States, military personnel accused of offenses are entitled to free lawyer counsel to represent them at courts-martial. This is so regardless of the accused's ability to pay (in contrast to civilian courts, where only those who are indigent have a right to free defense counsel).

In the UK, accused military personnel are afforded legal representation but must agree to pay a fee. According to this Daily Mail report, 
Soldiers face being found guilty for crimes they did not commit because they cannot afford to represent themselves in court after facing baseless claims, lawyers claimed yesterday. 
Military personnel of all ranks are being told by the Ministry of Defence they must pick up a bill of up to £9,000 to have a barrister defend them. 
Many of them cannot afford to make the increasing contributions and are turning up at court martials [sic] facing ‘excessive and unsupported’ claims with no legal advice, it is claimed.
* * *

Soldiers facing court martials [sic] for a variety of offences are typically told they have to make a contribution to the Armed Forces Criminal Legal Aid Authority (AFCLLAA). 
The amount they have to pay is means tested – but lawyers claim soldiers on small incomes are still being forced to pay staggering costs. 
In one case, a major serving overseas faced an allegation of ill-treatment of a subordinate after an alleged scuffle with a soldier who was on his iPhone. 
The member of his Company had been on the phone during a live fire training exercise. 
The major reprimanded him, removed his iPhone and told him his conduct was dangerous and wholly unacceptable behaviour.  
It was alleged, although disputed, that the major grabbed the clothing of the soldier and struck him. 
The major was told he had to pay £6,750 by way of contribution before he could receive legal aid, which he could not afford.
In some cases, The Military Mutual is stepping in to provide defense counsel. 

Friday, June 16, 2017

Navy TJAG urged to resign

A civilian attorney representing a Navy SEAL in a case involving alleged unlawful command influence (UCI) has suggested that the vice admiral currently serving as Judge Advocate General of the Navy should resign. The case is pending before the U.S. Court of Appeals for the Armed Forces. The latest developments are reported here.

The Court of Appeals has repeatedly described UCI as "the mortal enemy of military justice."

Thursday, June 15, 2017

European Parliament passes resolution on Pakistan

The European Parliament today passed a resolution (2017/2723(RSP)on the situation of human rights defenders and the death penalty in Pakistan. It states in part:

A. whereas military courts were authorised for two years while the civilian judiciary was supposed to be strengthened; whereas there has been little progress in developing the judiciary, and on 22 March 2017 the military courts were controversially reinstated for a further two-year period; . . .

C. whereas Indian national Kulbhushan Jadhav was convicted by a military court in April 2017 and sentenced to death; whereas the case is currently before the International Court of Justice on the grounds that he was denied consular access rights; . . .

* * * 
5. Deplores the use in Pakistan of military courts that hold hearings in secret and have civilian jurisdiction; insists that the Pakistani authorities grant access to international observers and human rights organisations for purposes of monitoring the use of military courts; calls also for an immediate and transparent transition to independent civilian courts, in line with international standards on judicial proceedings; underscores that third-country nationals brought to trial must be allowed access to consular services and protection;

ICC Appeals Chamber: A War Crime Does Not Have to Violate IHL

From Kevin Jon Heller at Opinio Juris:  One of the most basic assumptions of ICL is that an act cannot be a war crime unless it violates a rule of international humanitarian law (IHL).

No more. The Appeals Chamber (AC) at the ICC has just unanimously held in Ntaganda that a perpetrator can be convicted of a war crime even if his act does not violate IHL. That decision is not simply “unprecedented,” as the AC openly acknowledges. It is simply incorrect — as this post will demonstrate.

Closed-door session in Manila

The Supreme Court of the Philippines today conducted a closed-door session in the pending case concerning the Mindanao Martial Law declaration. This article has details, but does not reveal whether counsel opposing martial law were permitted to attend.

Title 32 National Guard court-martial reviewed in Wisconsin

The Wisconsin Court of Appeals has issued a lengthy opinion in State v. Riemer, No. 2016AP398, on review of a decision of a National Guard general court-martial. Todd Richmond's story for the Associated Press can be found here. The charges concern sexual harassment (e.g., suggesting a threesome) and related misconduct by a Wisconsin National Guard recruiter.

Unlike some states, Wisconsin does not have its own court of military appeals. Cases simply go into the state appellate courts.

Indian human shield case

Retired Major General S. G. Vombatkere, who retired as Additional DG Discipline & Vigilance in Indian Army HQ AG's Branch, has written a thought-provoking op-ed for The Citizen on a recent incident in which a man was used as a human shield. He writes in part:
Major [Leetul] Gogoi's unconventional initiative was a gamble played between the safety and success of the mission against the safety and [human rights] of Farooq Ahmed Dar. Fortunately the gamble paid off at least insofar as Major Gogoi and his command and the personnel rescued are concerned. What was lost was Farooq Ahmed Dar's HR and humiliation. 
Attempting to balance the “gain” of Major Gogoi (successfully rescuing the personnel and accomplishing his mission without casualties) against the “loss” of Farooq Ahmed Dar (violation of HR and intense humiliation) is not to trivialize the matter. However, this “balancing” can only be done by looking at the larger public good. To this writer's mind, more and longer lasting public good was achieved by Major Gogoi in saving the election personnel and avoiding casualties, than was lost by the undoubted illegal confinement of Farooq Ahmed Dar and violating his HR. 
The matter could and perhaps should have been resolved by completing the due process of the Commission of Inquiry, and then calmly and deliberately deciding whether or not Major Gogoi should be commended for his action, and if to be commended, do it unobtrusively. However, even while the C of I was in process, the Army Chief publicly commended Major Gogoi, thereby making the C of I useless – the Presiding Officer and Members of the C of I would not have been in a position to record their findings and views without prejudice. Effectively, the Army Chief intervened in the due process of military law, and provided unnecessary publicity to a controversial incident. 
Worse, by commending Major Gogoi so openly (it could have been done discreetly, without pugnacious statements) the incident has become politicised, while the message sent by the army chief to the junior leaders who face bullets, grenades and stones on a daily basis, is that using a human shield is okay. 
In the future, another young officer in a similar situation may premeditatively resort to Major Gogoi's spontaneous tactical precedent with the assurance that even if he is not commended, he will at the least not be proceeded against under military law. Thus using a human shield could well become a practice.
Is the author on firm ground in suggesting that "the larger public good" can justify what was done to Mr Dar?

A structural assessment of Indian military justice

With so much attention focused on the shortcomings of the Pakistani military justice system because of the case of Kulbushan Jadhav, Global Military Justice Reform Contributor Wing Cdr (Ret) U C Jha has called for some introspection in India about the country's own system. Offering a four-point critique, he writes here for Daily News & Analysis that the Indian armed services still function under separate disciplinary statutes and observes:
Firstly, the CO is empowered to try a military person for civil as well as military offences. For instance, if a military person commits murder or rape of a civilian on active service or in an area notified by the government, he would be tried only by a military court. The CO or higher authorities can award minor punishment to the individuals up to the rank of Major, but the accused has no legal help during the trial. The CO can award imprisonment up to 42 days to a havildar. There is no right to appeal against this punishment. 
Secondly, the CO can try a person up to the rank of havildar by summary court-martial and award punishment of one-year imprisonment and dismissal from service. The accused has no legal assistance during this trial. A court-martial constituted under military law determines both the findings and the sentence. The members of a court-martial are neither legally qualified nor trained in the administration of justice and exposed to varying degrees of command influence. A summary general court martial, constituted by three lay officers can award punishment up to death to any individual in the Army and in the air force. The accused can be denied formal charge sheet and legal aid on the grounds of expediency. The only solace is that the punishment of death needs confirmation from the Central government. 
Thirdly, the higher authorities confirming court martial have unrestricted power to mitigate, remit or commute sentences without giving any justification even in the cases of civil offences. Such power is liable to be misused by the military bureaucracy. The judge advocate (JA), the judicial branch of the military, is placed under the administrative and functional control of the same executive which orders a trial by court martial and reviews the proceedings. The officers of the JA department are not independent and cannot be expected to give a fair and just opinion. The processing of a grievance petition in the three services remains faulty. The officials who may be the root cause of the grievance process the complaint. The Armed Forces Tribunal (AFT) also does not have any jurisdiction in grievances relating to leave, postings, transfers, summary disposals, and trials. Ironically, these are the core issues leading to grievances and stress in the armed forces.
Lastly, the AFT has no power of civil contempt. There have been a large number of cases where the military authorities or the government has failed to take action on the decisions of the Tribunal. The Indian military legal system in its current form is a hangover from a time when the battlefield was so far removed from the normal world that the armed forces needed to be self-contained. The world has moved forward in the last two decades and there have been major changes in the military justice systems of other democracies. It is time we strengthen our system and restore the confidence of the public in the quality of military justice.

Wednesday, June 14, 2017

Martial law litigation in Philippines

Pres. Rodrigo Duterte has declared martial law on Mindanao. Readers may want to keep an eye on the related litigation currently pending in the Supreme Court of the Philippines. This Philippine Star article includes a link to audio of the court's proceedings. According to this tweet (which was reproduced on the court's website), the hearing will resume tomorrow morning:

Day 2 of is now adjourned. Proceedings will resume tomorrow, June 15 at 10am

Child sexual abuse and other sexual offenses

Task & Purpose has looked into sexual offenses by members of the Marine Corps that involve children. From this report:
A significant portion of court-martial proceedings for Marine Corps personnel since the start of 2017 have included charges involving the sexual abuse of children, according to Department of Defense data reviewed by Task & Purpose, further detailing the growing scourge of child sexual abuse that’s marred the armed forces in recent years.
According to general and special court-martial disposition overviews of judicial proceedings published by Headquarters Marine Corps each month since January, nearly 18% of cases involved sexual assault or abuse of a child, attempted sexual assault or abuse or a child, or the possession, solicitation, distribution or production of child pornography.
The Task & Purpose data focus on trials and in only one of the armed forces. How many cases, involving what kinds of events, make it through the military justice appellate process? As the October 2016 Term draws to a close, it is clear that a remarkable percentage of the work of the U.S. Court of Appeals for the Armed Forces involves sexual misconduct of one kind or another. As of reveille today, the court had issued 30 decisions on full opinion. Only six had nothing to do with sex (involving things like drug abuse and larceny instead). If you count one case that involved child pornography and another of sexual harassment, all of the remaining 24 involved sex offenses (12 Army, 8 Air Force, 2 Coast Guard, and one each from the Navy and Marine Corps). In five of those 24 cases, there was a child victim. Three of those five were Army cases; the other two were from the Air Force.

Tuesday, June 13, 2017

Army JAG school in the news

UVA Today has a worthwhile article on the U.S. Army Judge Advocate General's Legal Center and School, located in Charlottesville, VA.
"For recent law school graduates who are joining the Army JAG Corps, it’s the first stop after their Direct Commissioning Course at Fort Benning, Georgia. They receive special training in military justice through the JAG School’s Officers Basic Course before they are sent to their first posts. 
"The largest group of students consists of JAG officers with eight to 10 years of experience who are returning to the school to earn their Master of Laws degree. Of all the military JAG schools, the Army’s is the only one accredited by the American Bar Association to offer this degree. 
"Finally, there is a small group of long-time officers who return to the JAG School to receive certification to become judges."

Speedy military justice in Afghanistan

In April, the Afghan National Army base at Mazar-e-Sharif was overrun by Taliban insurgents, leading to the deaths of 125 soldiers; another 64 were wounded. Military justice proceedings ensued against 26 officers, including two generals. Sentences ranged from one to three years in prison. Details here, in Spanish.

That's one speedy trial.

Monday, June 12, 2017

Revolt of the judges

South Korean judges keep acquitting conscientious objectors, despite the country's Constitutional Court's refusal so far to recognize conscientious objection. Here's the latest Korea Times report. Excerpt:
A local court ruled in favor of three conscientious objectors who refused to serve in the Korean military, Thursday, bringing the number of people acquitted to 30. Amnesty International and human rights activists welcomed the verdict, calling it significant progress. They also expect alternative service to become available under the Moon Jae-in administration, one of Moon's pledges during his presidential campaign. 
A district court in Daegu ruled Thursday that "conscientious objection is just" as denying this would be a "violation of conscientiousness," a right protected by the Constitution. 
This goes against conventional upper court and Constitutional Court rulings that have put 190,000 men in prison since the 1950-53 Korean War. About 500 to 600 men are imprisoned per year on average for refusing to serve their around two-year compulsory military duties as mandated by the Military Service Act. At least 397 objectors were imprisoned as of the end of April, according to an Amnesty International report. 
Amnesty International Korea welcomed the news. "Since 2015, a surge of lower court rulings has found conscientious objectors not guilty. It's a significant trend," its representative Park Seung-ho said.

Where should this case be tried?

Fami Falana SAN
This just in from Nigeria:
Mr [Femi] Falana told Channels TV’s judiciary correspondent that the case of Retired Col. Sambo Dasuki ought not to have been trialled [sic] in a regular court but a military court marshal [sic], especially because the case itself has to do with procurement of arms to fight terrorist. 
According to him, “Any legal basis in taking a serving and Retired Military Officer to a regular court, if I have my way they will have the arraign before court’s marshal [sic, sic], a special court marshal [sic] because the allegations relate to a counter-insurgency operation in the northeast region. 
“Secondly, the government should have taken the advantage of the harmonisation of criminal justice act to ensure that corruption cases are conducted almost day by day and to do that you have to appoint more judges, you have to equip those courts and make the conditions of the judges favourable.”
Now why would a retired officer want to be tried by a court-martial? Don't answer all at once.

And now for something else completely different -- but in Canada

Andrew Seymour, in the Ottawa Citizen, writes that the DND appeals not-guilty verdict in military sexual assault trial.
Cpl. Simon Cadieux was found not guilty of sexual assault and drunkenness by a military judge following a court martial in May. Cadieux’s unit was participating in Operation Tropical Dagger, where Canadian Forces personnel mentor members of Jamaica’s military in counter-terrorism techniques and drug interdiction.
A U.S. Service does not have the power to appeal a not guilty finding or a sentence at this time. There are proposals to allow for a government appeal of a sentence that they believe is too low. I will leave it to our leader to further expand on this.

Sunday, June 11, 2017

Death penalty moratorium urged in Egypt

Human Rights Watch has urged a moratorium on the death penalty in Egypt, issuing a detailed statement on the trial of civilians by military courts. Excerpt:
Egypt’s military courts violate several key elements of due process, including the defendants’ right to be informed of the charges against them, to access a lawyer, to have a lawyer present during interrogations, and to be brought promptly before a judge. Judges in the military justice system are military officers subject to a chain of command, without the independence to ignore instructions by superiors. 
The use of military courts to try civilians violates international law. The Human Rights Committee, the international expert body that interprets the International Covenant on Civil and Political Rights, which Egypt ratified in 1982, has stated that civilians should be tried by military courts only under exceptional circumstances and only under conditions that genuinely afford full due process. The African Commission on Human and Peoples’ Rights, which interprets the African Charter on Human and Peoples’ Rights, ratified by Egypt in 1984, has stated that civilians should never face military trial and that military courts should not have the power to impose the death penalty. The African Principles and Guidelines on the Right to a Fair Trial and Legal Assistance, adopted in 2003, prohibit military trial of civilians under all circumstances.

Saturday, June 10, 2017

And now for something completely different: a British Army court-martial, compared (Part 2)

In Part 1, I commented on watching some of the R. v. Tompkins court-martial.  One of two major takeaways was the formality of a British court-martial compared to how a U.S. court-martial is conducted.  Here of some thoughts on the differences large and small (aided as always by my gawker-companion, DHS).

The courtroom (at Andrews Air Force Base, Maryland, US) had a British flag to the right of the judge and the U.S. flag to the left--little different here.  But, and this becomes important, on the wall behind the judge was an official photograph of H.M. The Queen.

At the beginning of the hearing, the judge told spectators that the hearing was being conducted under the laws of England and Wales and military regulations.  He specifically asked that reporters in the audience refrain from publishing the name of the complaining witness.  Name privacy is practiced in the U.S. media so this is a similar practice.  I have prepared tables to reflect the differences in a procedure as the most convenient way to identify differences.

The next part I hope to compare the apparent informality observed in how a British court-martial trial on the merits proceeds with those I experience.

Former Chief of the Army Staff of Indian Army writes on the Jadhav issue with special reference to Military Law in Pakistan

General VP Malik, a former Chief of the Army Staff of the Indian Army has written a detailed op-ed on the Jadhav issue with special reference to Military Justice in Pakistan, today in The Tribune.
An excerpt:
“...In military courts, the accused has a right to challenge the members and question its jurisdiction. There is no evidence that this vital right was offered to Jadhav. He was given assistance of a defending officer — a military officer with little or no legal qualification. Pakistan army court-martials under this Act do not allow the accused access to civil lawyers. The courts conduct trials in total secrecy. The location and timings of court-martials are not made public. 
Military law, like the civilian code of criminal procedure, mandates a court-martial not to accept a plea of guilty where the charge can involve a death sentence. The trial has to be processed considering the accused as ‘not guilty’. The confession has to be supported by corroborative evidence to establish his guilt beyond all reasonable doubt. There is no such proof in this case.
The principle of fair justice warrants a written judgment by a court, explaining the logic behind the verdicts. But Pakistan military courts are not required to give such documents. Even the families of convicts are not told about the investigation and evidence related to the case. How can then one file an appeal against the verdict when essential evidence, findings and legal reasoning are not made public and given to the accused?
Under Section 133B of the PAA [Pakistan Army Act], an accused has no remedy against the decision of a court-martial except appeal. These Sections state any person to whom a court-martial has awarded a sentence of death, imprisonment for life, imprisonment exceeding three months or dismissal from service may prefer an appeal against the finding/sentence to a Court of Appeals headed by a Major-General within 40 days from the date of announcement of finding/sentence. The decision of the Court of Appeals cannot be called in question before any court or other authority whatsoever...”

Behind the times in Pakistan

Dawn reports here on a Supreme Court of Pakistan case of some interest. The case was a challenge by two former soldiers to their fraud conviction by Field General Court-Martial. The court-martial had acquitted them, but the confirming authority sent the case back for reconsideration. The court-martial took no further evidence in response but simply rendered a new judgment, convicting the men. The decision is not yet on the Supreme Court's website, but Dawn provides some details:
During the hearing, retired Col [Muhammad] Akram, appearing on behalf of the petitioners, argued that the FGCM had not recorded any additional evidence when the case was remanded back to it. Therefore, it erred in law in convicting the appellants on reconsideration of the same evidence on the basis of which they were earlier acquitted. 
The counsel argued that under the PAA [Pakistan Army Act], the confirming officer was required to give his views on the evidence drawing the attention of the court to a particular point they had failed to appreciate. But having failed to give his views on the evidence, the confirming authority wrongfully exercised its powers under the act. 
The counsel also argued that in terms of the Army Regulations No. 277, the FGCM could be censured if it did not record a conviction on remand by the confirming authority. Thus the FGCM acted under the fear of censure in convicting the appellants, he implied.
But the judgement authored by Justice Ijaz-ul-Ahsan, one of the members of the three-judge SC bench, held the argument that the FGCM could be censured if it did not record a finding, to be unique, unsubstantiated and devoid of merit.
Moreover, it was also not mandatory under the law for the FGCM to record additional evidence in revision and that additional evidence was required to be recorded only if it was so directed by the confirming authority, the judgement said.
“In the absence of a finding that the conviction and sentence was coram non judice, without jurisdiction or mala fide, we are not persuaded to reappraise evidence or examine its sufficiency in exercise of our jurisdiction under Article 185(3) of the constitution,” Justice Ahsan observed. The impugned judgement of the high court was well reasoned and entrenched in the principles of law settled by the SC in its different judgements, he added.
Pakistan retains the old British military justice model, long since abandoned in Britain. Passing over the court-martial's lack of independence, the slow pace of this case is shocking. The chronology is not completely clear, but it seems the offenses were committed in 1985, the court-martial was conducted (including remand and reconsideration) in 1991, the Lahore High Court denied collateral review in 1999, Supreme Court review was not sought until 2008, and it took that court another nine years to decide the case.

Friday, June 9, 2017

35 years for Facebook posts

A military court in Thailand has handed down a 35-year sentence to a man who posted 10 Facebook posts deemed to be disrespectful of the Thai royal family. Details here (in Spanish).

Thursday, June 8, 2017

Not military justice, but . . .

Occasionally we run across a past event or writing that is worth sharing. Here's one: Prof. Jeremy Rabkin's The Legend of the Privateer Airship and the Currents that Lifted It, 18 Green Bag 2d 287 (2015). Enjoy.

Wednesday, June 7, 2017

Racial disparities in military justice

Disparate treatment based on race has long been a concern of American military justice. Protect Our Defenders today released a report on the subject. The report is on POD's website.

POD's summary states:
Protect Our Defenders (POD) submitted a series of Freedom of Information Act (FOIA) requests to each military service branch seeking demographic information on military justice and disciplinary proceedings. POD received responses from four of the service branches, and analyzed this previously unpublished data to assess the prevalence of racial and ethnic disparities within the military’s disciplinary and criminal justice systems. 
POD’s analysis of the data shows that, for every year reported and across all service branches, black service members were substantially more likely than white service members to face military justice or disciplinary action. These disparities have not improved, and in some cases have increased, in recent years. 
In its official response to POD’s request, the Air Force explicitly acknowledged that: 
“Diversity is a national security imperative, and we understand, in order to recruit and retain a diverse population of Airmen, they must have confidence that our system is free of any unlawful discrimination.” 
Overall, black service members were at least 1.29 times and as much as 2.61 times more likely than white service members to have an action taken against them in an average year. 
  • In the Air Force, black airmen on average are 1.71 times (71%) more likely to face court-martial or Non-Judicial Punishment (NJP) than white airmen. 
  • In the Marine Corps, black Marines are, on average, 1.32 times (32%) more likely to receive a guilty finding at a court-martial or NJP proceeding than white Marines, with the size of the disparity becoming more significant the more serious the disciplinary action was. 
  • In the Navy, black sailors are on average 1.40 times (40%) more likely than white sailors to be referred to special or general court-martial. 
  • In the Army, black soldiers are on average 1.61 times (61%) more likely to face a special or general court-martial compared to white service members. 
In contrast to civilian society, the military serves as an imperfect “control” for factors associated with criminal involvement, including rigorous recruiting standards and background checks, educational requirements, and screenings for illicit drug use. Service members also enjoy full employment with a steady income. 
Despite these equalizing factors, racial disparities are present at every level of military disciplinary and justice proceedings, particularly between black and white service members. These findings raise questions about racial bias and discrimination among decision-makers in the military justice system. 
Military leadership has been aware of significant racial disparity in its justice process for years, and has made no apparent effort to find the cause of the disparity or remedy it. The leadership has vigorously opposed any suggestion that the commander-controlled justice system is hindered by conflicts of interest or bias and has gone to great lengths to tout the fairness of the system. However, the military’s own data raises serious challenges to the idea that the system in its current form is capable of delivering impartial justice.
(Emphases in original.)

Tuesday, June 6, 2017

Contributor appreciation day

The Editor wishes to heartily thank the contributors who enrich and broaden the scope of Global Military Justice Reform.

Would you like to become a contributor? If so, please contact the Editor or post a comment (real names only, of course).

Appellate mediation fails in Azaria case

Efforts to resolve the pending cross-appeals in the high-profile court-martial case of IDF Sgt. Elor Azaria have (not surprisingly) failed, according to this Times of Israel report. Excerpt:
“At the end of the meeting it became apparent that the gaps between the sides are still significant and substantial, and don’t enable an agreement to be reached,” the army said. 
“An update to that effect will be delivered to the military appeals court.” 
No date has been set for the court to render its decision in the divisive case, which has revealed deep rifts in Israeli society. 
The army’s appellate court in Tel Aviv is led by a panel of three military judges, a major general and a brigadier general. 
The appeal hearings have at times been acrimonious, with the two sides trading barbs and, at times, raising their voices, but sources said Monday’s meeting was to the point and professional, despite being ultimately unhelpful.
Two interesting issues concern credit for time served and disciplinary "hold" pending the completion of appellate review:
For over a year, the soldier has been confined to base after being released from military house-arrest shortly after the March 24, 2016 incident. His time spent on base will not count toward his sentence, but nine days he spent in jail immediately after the killing will be deducted from his term, the judges ruled. 
Adding an element of complexity to the case, Azaria’s military service ends on July 20, meaning that if a verdict is not reached by then, he will no longer be able to remain confined to a military base. In such a case, the judges would need to decide if Azaria would remain under arrest and if so under what conditions.

Monday, June 5, 2017

Quick look at China's new regulations on military legislation (Part 1)

As this blog highlighted several weeks ago, on May 8, China's Central Military Commission (CMC) issued new regulations on military legislation, Regulations on Military Legislative Work (军事立法工作条例) and the full text was publicly released. This observer has not seen an English translation   These regulations have commonalities with civilian regulation of legislation but also have their own characteristics. Article 77 provides that they apply to the People's Armed Police as well as the People's Liberation Army (PLA).  According to Article 76, these regulations apply also to military-related treaties (in relevant part) so it would be well worth the modest cost for a foreign institution to commission a translation, given the increasing importance for international peace and security of understanding the rules by which the PLA operates.

Chapter I: General Provisions
  1. The regulations apply to the drafting, amendment, abolition, and interpretation of military legislation (Article 2).
  2. Military legislative work must be guided by Marxism-Leninism, Mao Tsetung Thought, Deng Xiaoping Theory, the Three Represents, and the important speeches of Secretary Xi (深入贯彻习主席系列重要讲话精神特别是国防和军队建设重要论述) (Article 3) and must uphold the supreme leadership of the Party over the military;
  3. Military legislation includes military regulations (军事法规)--at the same level as State Council administrative regulations (行政法规). sometimes the CMC and State Council issue regulations together, on matters involving both the military and civilian systems.(these regulations, on the export of military goods, are one example) and military rules (军事规章). Other types of titles ((具体规定) specific regulations,、(办法) measures (细则) implementing regulations (等军事规范性文件) other military normative documents should be used only if conditions are not right to issue military regulations and military rules. [The terminology is consistent with and coordinates with the Legislation Law. The language on normative documents is analogous to efforts in the civilian system to control the issuance of normative documents.]
  4. Among the aims of military legislation is completeness, relevance, and practability.. Party committees are to exercise unified leadership and legislative affairs offices are to plan, coordinate, and review legislation.
So the objective is to have better drafted, more detailed, systematic, and more useful military legislation that implements Communist Party policy.  As previous blogposts have detailed, while implementation of Party policy has never been in question, senior Chinese military lawyers have for some time criticized the sad state of military legislation.  One or more follow up posts will look at some of the details.