Wednesday, July 19, 2017

Summary proceedings: Canada impermeable to worldwide advances in human rights legislation?

HISTORICAL PERSPECTIVE

In a November 24, 2014 presentation before the UN High Commissioner for Human Rights in Geneva, Switzerland, Brigadier-General (ret’d) Arne Willy Dahl, Honorary President of the International Society for Military Law and the Law of War, noted that most countries have systems dealing with disciplinary offences of a minor nature by summary punishments. He observed: 
Summary punishments, is almost without exception a matter for the Commanding Officer, and may pose their specific concerns with regard to the human rights of the accused
BGen Dahl went on to say:
. . . Military justice has its roots in the authority of the commanding officer, and his need to maintain discipline among his troops. When Alexander the great took his army to Persia or Roman legions fought in North Africa it would have been utterly impractical to bring military cases back to a court in Macedonia or in Rome. 
             Canada's Summary Trial procedure is frozen in time
The requirement for summary proceedings was first recognized by the British Parliament with the passage of the Mutiny Act in 1689.  Two centuries later, summary trials were still in existence under British military law when the Canadian Parliament passed An Act respecting the Militia and Defence of the Dominion of Canada, S.C. 1868, c. 40 [The Militia Act, 1868to govern Canada's armed forces.     

In recent years, the European Convention of Human Rights (ECHR) and various rulings on its applicability to summary trials have caused some countries, in particular the United Kingdom and Ireland, to completely overhaul the Summary Trial procedure. 

As shown in the table below, the Summary Trial procedure, as practiced in Canada today, has been all but abolished among our allies. Along with many South Asian countries such as Bangladesh, India, Nepal, Pakistan and Sri Lanka, Canada is one of the last bastion for this ancient summary trial procedure. 


AN UNCONSTITUTIONAL PENAL PROCEDURE?

Nearly 800 military members in Canada face a summary trial each year. These disciplinary proceedings, which are heard by that soldier’s Commanding Officer, could lead to a sentence with ‘true penal consequences’ such as detention, demotion, a large fine, or a reprimand. A summary trial conviction may also result in a criminal record.  

Amazingly, however, there is no right to legal counsel at a summary trial even if the accused is being tried on Canadian soil nor is there a transcript of proceedings or a right of appeal.  Moreover, the Commanding Officer hearing the summary trial has no legal training. The Summary Trial procedure is also devoid of any rules of evidence, meaning there is no protection against the compellability of the accused as a witness and against self incrimination. There is no right to spousal privilege. Adverse inferences may be drawn from the accused’s silence and hearsay evidence may be taken and fully relied upon.

No other Canadian faces such a one-sided penal justice process

A FLEETING MOMENT OF  LUMINOSITY


In 2015 Canada’s Parliament introduced Bill C-71 which was aimed at modifying the Summary Trial procedure. However, the authenticity for such reforms is questionable, because, with the dissolution of Parliament prior to the last Federal election, within weeks he Bill died on the order paper, and nearly two years since, there is no indication that it will be re-introduced.

Why is this journalist being charged before a military court?

A journalist in Cameroon is facing trial in a military court on charges of promoting terrorism. Details here.

Human rights jurisprudence strongly disfavors the trial of civilians by military courts. The African Charter on Human and Peoples' Rights has been interpreted to forbid such trials.

Why is this case being sent to a military court?

Crime Russia reports here on another case that has been sent to a military court:
The investigation of the criminal case against two members of the Shamil Basaev's gang Ramzan Belyalov and Magomed Mazdaev has been completed, the materials have been sent to the North Caucasus District Military Court, the press service of the Russian Federation's press service reports. 
Figures are charged with Terrorist Act, Banditry, Hostage Taking, and Illegal Storage of Narcotic Drugs. 
As established by the investigation, Belyalov and Mazdaev voluntarily joined the Basaev's gang, and afterwards took part in the commission of a number of grave and especially grave crimes. In particular, in the terrorist attack on Budennovsk, when an armed gang, a total of 160 people, attacked the city. As a result, 129 people were killed, 317 were injured, 1586 people were taken hostage.
Human rights jurisprudence strongly disfavors the trial of civilians by military courts. 

Tuesday, July 18, 2017

Civilian oversight in Canada

Michael W. Drapeau and Joshua M. Juneau have published a new 70-page monograph titled "Calling the House to Order: After 70 Years of Peace It's Time for Greater Civilian Control over the Canadian Military Criminal Justice System." It can be downloaded here.

The study was presented at the 30th annual conference of the International Society for the Reform of Criminal Law in San Francisco, California on July 8-13, 2017. It calls upon the Minister of Justice to exercise her statutory ‘superintendence function’ so as to exercise greater civilian control over the Canadian military criminal justice system.

Summer doldrums

Not to worry, Dear Reader, Global Military Justice Reform has not gone missing. There's simply not that much going on right now. A few developments you may have missed:

  • It looks like the Philippines will extend martial law beyond its current geographical scope and duration.
  • The military appellate court in Pakistan has denied Kulbhushan Jadhav's request for clemency, which has now gone to the Chief of Army Staff; Jadhav's mother may get to visit her son. The Vienna Convention issue remains in play at the International Court of Justice.
  • A Jordanian military court has sentenced the soldier who killed several American soldiers to life imprisonment. (Watch for clemency.)
  • IDF Sgt. Elon Azaria has been granted house arrest pending appeal.
  • A Moscow military court has handed down sentences ranging from 11 to 20 years for the murderers of Russian opposition figure Boris Nemtsov.

Friday, July 14, 2017

Erosion of judicial independence of India's Armed Forces Tribunal

The Indian Express reports here on changes in the arrangements surrounding the Armed Forces Tribunal. Not good news for judicial independence:
The Union government has changed the rules governing appointment in the Armed Forces Tribunal (AFT), giving more powers to the Defence Secretary who would now have a role in ordering inquiries against members of the tribunal and their removal. 
Contravening a Constitutional Bench judgement of the Supreme Court which directed the placement of tribunals under the Law Ministry, the new rules reiterate that the AFT will function under the Ministry of Defence which, incidentally, is the ministry against which all orders of the AFT are to be passed. 
The rules also reiterate the role of the Defence Secretary in selecting the Members of the tribunal and even consultation with the Chief Justice of India (CJI) has been abrogated. 
The Defence Secretary and other bureaucrats would now have a role in ordering inquiries against members of the tribunal and their removal, which could only be undertaken by a Supreme Court judge till now. 
The facilities and benefits of retired High Court Judges appointed as Judicial Members have been downgraded to regular Group A (Class I) officers of the Central Government. 
While the SC had directed a longer tenure for tribunal members without a provision for re-appointment to ensure independence, the new rules have decreased even the existing tenure to 3 years and have provided for re-appointment by a selection committee, of which the Defence Secretary is a member. This, despite the fact that the Defence Secretary is the first respondent party in all litigation in AFT. 

Happy Bastille Day


Thursday, July 13, 2017

Australian military justice in a nutshell

The Conversation has posted this very short description of the Australian military justice system, following the publication of leaked defence force documents alleging that special forces personnel committed acts such as possible unlawful killings in Afghanistan.

Tuesday, July 11, 2017

Draft available of proposed Manual for Courts-Martial changes

The Defense Department has posted a notice of the availability of proposed changes to the Manual for Courts- Martial that would implement the Military Justice Act of 2016.

If you send in a comment to the government, please also post it on this blog so others will benefit. Don't forget to comment here using your own name, in accordance with R.B.R. 1.*

While it is of course a good thing that DoD is circulating these materials for public comment, as it has done since the Military Rules of Evidence were drafted, but hold the euphoria. The proposed changes implement a measure that was itself never the subject of a moment of congressional hearings open to the public. [Cue Bronx cheer for the House and Senate Committees on Armed Services.] An opportunity to comment on implementing regulations is better than nothing, but the fact is that in critical respects the horses have already left the barn.

* Global Military Justice Reform Blog Rule 1.

Saturday, July 8, 2017

GAO report on separation of personnel with mental health conditions

The San Antonio Express-News has this report on the "bad paper" separation of military personnel. Excerpt:
The Government Accountability Office reported in May that the military discharged almost 92,000 service members for misconduct from 2011 through 2015. More than 57,000 had been diagnosed with a mental health condition in the two years prior to their separation, and fewer than 3,500 received honorable discharges. 
The study identified post-traumatic stress disorder, traumatic brain injury and depressive disorder among nine conditions linked to misconduct. The military gave the most common diagnosis, for adjustment disorder, to nearly 32,300 men and women. 
The prevalence of that diagnosis alarms veterans advocates. They assert that the Defense Department has shifted tactics in an ongoing effort to remove rather than treat service members with mental health disorders to avoid the cost of providing them disability and retirement benefits.

Ticket to ride

The Speedboat War continues at Guantánamo, with the military commission judges in a pushing and shoving contest with the admiral who runs the place over whether they will get special transportation to and from the business end of the base or have to ride the ferry like everyone else. Carol Rosenberg has the story here.

Friday, July 7, 2017

Is the UCMJ a suitable model for dealing with police killings?

Prof. Ronnie Dunn
Professor Ronnie Dunn of Cleveland State University tosses out the following idea in this interview:
And my mind keeps turning to the military, for example. I'm a veteran. And the military is held to the standards of the uniform code of military justice. So my thought is, in that the police are a paramilitary institution, that we might need to -- and this is totally thinking out of the box -- move to some type of judicial system or tribunal in regards to police-involved shootings, these controversial police-involved shootings. These cases are tried in a separate court, for example. Currently, many jurisdictions have drug courts, they have special dockets for veterans and other things of that nature. So I'm just trying to think of how we might be able to move to a system that can provide a greater degree of accountability and justice.
It's not clear whether he is suggesting a system of internal criminal discipline à la the UCMJ or a separate part of the civilian courts with special jurisdiction over charges arising from police killings. Is either a good idea? Or neither?

Justice Leonen's "Mindanao" dissent

History teaches us that to rely on the iron fist of an authoritarian backed up by the police and the military to solve our deep seated social problems that spawn terrorism is fallacy. The ghost of [Ferdinand] Marcos’ Martial Law lives within the words of our Constitution and rightly so. That ghost must be exorcised with passion by this Court whenever its resemblance reappears.

Never again should this court allow itself to step aside when the powerful invoke vague powers that feed on fear but could potentially undermine our most cherished rights. Never again should we fall victim to a false narrative that a vague declaration of martial law is good for us no matter the circumstances. We should have the courage to never again clothe authoritarianism in any disguise with the mantle of constitutionality.

The extremist views of religious fanatics will never take hold in our communities for so long as they enjoy the fundamental rights guaranteed by our constitution. There will be no radicals for so long as our government is open and tolerant of the activism of others who demand a more egalitarian, tolerant and socially just society.

We all need to fight the long war against terrorism. This needs patience, community participation, precision and a sophisticated strategy that respects rights while at the same time using force decisively at the right time and in the right way. The terrorist wins when we suspend all that we believe in. The terrorist wins when we replace social justice with disempowering authoritarianism.

We should temper our fears with reason. Otherwise, we succumb to the effects of the weapons of terror. We should dissent–even resist–when offered the farce that Martial Law is necessary because it is only an exclamation point.

Marvic M.V.F. Leonen, J., dissenting in Lagman v. Medialdea, the Mindanao Martial Law case, Supreme Court of the Philippines

Special Jurisdiction for Peace -- unresolved questions

Human Rights Watch has raised serious questions about the "Special Jurisdiction for Peace" provided for in the Colombian peace accord. Excerpt from the NGO's statement:

The [Constitutional C]ourt should limit a broad provision allowing FARC guerrillas to seek or hold public office even while serving sentences for grave abuses, Human Rights Watch said. Such a change should ensure that sanctions against them are carried out fully and unconditionally. The Constitutional Court should also fix the amendment’s narrow definition of “command responsibility” –the basis on which military commanders can be held criminally responsible for crimes committed by their subordinates. The definition in the amendment is inconsistent with international law, Human Rights Watch said, and could allow senior officers of the Colombian Armed Forces to escape justice.
*   *   * 

Definitions of “command responsibility” proposed during the peace process that will eventually apply both to military officers and guerrilla commanders, have drawn concerns repeatedly from Colombian rights groups and various international organizations, including the International Criminal Court (ICC) prosecutor. Human Rights Watch has criticized definitions proposed as applicable to both parties to the accord, including one applicable to FARC guerrillas that has yet to become law. In January 2017 Human Rights Watch wrote to legislators criticizing the definition proposed then for senior officers of the Armed Forces—identical to the one passed in Constitutional Amendment 1 of 2017— as distorting international law in a way that could severely weaken accountability. 
Between 2002 and 2008, army brigades across Colombia killed more than 3,000 civilians, in what are known as “false positive” cases. Under pressure from superiors to show “positive” results and boost body counts in the war against guerrillas, soldiers abducted victims or lured them to remote locations under false pretenses. The soldiers killed them, placed weapons on their bodies, and reported them as enemy combatants killed in action. 
While more than 1000 soldiers have been convicted for these crimes, few commanders who led brigades responsible for the killings and later rose through the military ranks have been held accountable. It is still unclear whether the Special Jurisdiction for Peace –which will hear cases of crimes related to the armed conflict– will handle these cases.
“If the Special Jurisdiction for Peace handles false positive killings and applies the legislature’s distorted definition of command responsibility, senior officers responsible for these appalling murders may never face justice,” [HRW's José Miguel] Vivanco said.

Congress at work

Sen. Joni Ernst (R.-IA) has issued a statement trumpeting her many contributions to the current proposed National Defense Authorization Act for FY2018, a couple of which concern military justice. Among the many others on her list of bullet points:
25. A provision recognizing the risk of Foot and Mouth Disease, or other foreign animal disease, to our food production economy and our national security. It directs the Department of Defense and Department of Agriculture to analyze our ability to response to such an attack.
Good to know. It would be interesting to know where this proposal originated.

Will Omar Khadr get to keep it?

The Globe & Mail reports here on efforts by the widow of a U.S. soldier killed by Omar Khadr and another soldier who who was blinded to levy against any award by Canada. Excerpt:
Mr. Khadr’s long-time lawyer, Edmonton-based Dennis Edney, said he was not aware of the court application. (According to the court file, it had not yet been served on Mr. Khadr or his lawyers.) But Mr. Edney said any attempt to redirect compensation owing to Mr. Khadr could result in a major legal battle. 
“I don’t understand what basis in international law that they have in being able to sue Omar Khadr for the death of Christopher Speer on a battlefield, when there is absolutely no evidence that he did [what is alleged] other than Omar Khadr’s own admitting to it while being tortured in a place that is renowned for torture,” said Mr. Edney, who would not otherwise comment on the reports of a settlement for his client. “... They are going to have quite a fight.” 
University of Western Ontario law professor Stephen Pitel, an expert on questions of jurisdiction and the recognition of foreign judgments by Canadian courts, said that although Canada’s rules are “pretty liberal,” getting this Utah ruling recognized here could be an uphill battle. 
Prof. Pitel said the plaintiffs will need to show how the Utah court had proper jurisdiction over both a battlefield incident in far-off Afghanistan and a defendant who did not show up to court because he was in prison. Mr. Khadr’s lawyers could also fight the recognition by arguing that it offends the principle of “natural justice” or Canadian “public policy.” 
But Prof. Pitel said Ms. Speer and Mr. [Layne] Morris may be helped by a recent Ontario Court of Appeal ruling, released just last week, if it stands. In a sprawling case known as Tracy v. Iran (Information and Security) [2017 ONCA 549 (June 30, 2017)], Ontario’s highest court upheld a lower court decision and sided with Americans seeking to enforce U.S. judgments against Iran and demanding compensation for victims of Iranian-sponsored terrorism. 
“There are a lot of legal issues here, and it is going to take a while to unravel them,” Prof. Pitel said.
Of course, the parties could also reach a settlement . . .

It is unclear whether Canada has already paid Mr. Khadr. If so, efforts to execute the U.S. judgment against him could be further complicated.

Thursday, July 6, 2017

Recruit training -- "a culture of brutality"

The New York Times Magazine has posted this disturbing article by Janet Reitman, titled "How the Death of a Muslim Recruit Revealed a Culture of Brutality in the Marines." Excerpt:
On Aug. 7, nearly a year and a half to the day that Raheel Siddiqui arrived on Parris Island, Gunnery Sgt. Joseph Felix will stand trial, a proceeding expected to last at least two weeks. The charges against him are technically violations of military discipline; he has not faced broader criminal charges like assault. The Siddiqui family thinks the charges are insufficient. ‘‘We were advised that an assault charge was not brought because the [other charges] carried a harsher penalty,’’ says Shiraz Khan, the family’s lawyer. ‘‘Well, the elements of assault are much different, and so are the implications. The systemic hazing, abuse and maltreatment suffered by Raheel Siddiqui while at Parris Island was not the result of a single incident by one individual. We aren’t blind to what Raheel’s body and autopsy say.’’

Detention of Venezuelan military personnel by Maduro regime

Reuters claims today to have seen Venezuelan military documents that show that 123 members of the Venezuelan armed forces have been detained since anti-government unrest began in April on charges ranging from treason and rebellion to theft and desertion.

Reportedly, the list of detainees, which includes officers as well as servicemen from the lower ranks of the army, navy, air force and National Guard, provided the clearest picture to date of dissatisfaction and dissent within Venezuela's roughly 150,000-strong military. The records, detailing prisoners held in three Venezuelan jails, showed that since April nearly 30 members of the military have been detained for deserting or abandoning their post and almost 40 for rebellion, treason, or insubordination. Since the opposition started its protests more than three months ago, a handful of security officials have gone public with their discontent. Last week, rogue policeman and action movie star Oscar Perez commandeered a helicopter and attacked government buildings, claiming that a faction within the armed forces was opposed to [Nicolás] Maduro's government.

"Proud boys" and free speech

An interesting issue has arisen in Canada, as chronicled here by CBC News. When a group of First Nations activists held a protest at a public site in Halifax, NS, on Canada Day, it was disrupted by off-duty military personnel who call themselves "the Proud Boys." Excerpt:
The members of the Canadian Armed Forces who disrupted a protest organized by Indigenous activists in Halifax on Canada Day will be removed from training and duties as the military investigates and reviews the circumstances, says the country's top general. 
"We are the nation's protectors, and any member of the Canadian Armed Forces who is not prepared to be the defender we need them to be will face severe consequences, including release from the forces," Gen. Jonathan Vance, chief of defence staff, said in a statement Tuesday night. 
On Saturday, a gathering of Indigenous people and activists held a protest at the Edward Cornwallis statue in downtown Halifax. The protest was disrupted by five off-duty military members wearing black polo shirts who referred to themselves as Proud Boys. 
Cornwallis, a governor of Nova Scotia, was a military officer credited by the British for founding Halifax in 1749. Later that year, he issued a bounty on the scalps of Mi'kmaq people. There's been considerable debate over the use of Cornwallis's name on public parks, buildings and street signs. 
"What happened in Halifax over the weekend is deplorable, and Canadians should rest assured my senior leadership is seized of the matter," said Vance. 
"The members involved will be removed from training and duties while we conduct an investigation and review the circumstances. Their future in the military is certainly in doubt."
Free speech issues are at stake, much as they are when serving personnel engage in hate speech of one kind of another, as has happened in other countries, sometime through the misuse of social media. What is the responsibility of military commanders in these circumstances? Does it matter that the personnel were out of uniform? If no civilian law was violated, should these people be subjected to military discipline?

Wednesday, July 5, 2017

Mindanao martial law decision available

The opinions in the Mindanao martial law case, Lagman v. Medialdea, G.R. 231659 (Phil. July 4, 2017), are now available on the website of the Supreme Court of the Philippines.

New law gives military prosecutor power to bring charges; can you guess where? (Hint: not the US)

The National Assembly of Burkina Faso has approved a bill that would, among other things, shift the power to initiate military court prosecutions from the Minister of Defense to the military prosecutor, according to this Le Pays report (en français). 

United States v. Khadr -- Canada to pay, but who will collect?

Canada has agreed to pay Omar Khadr, who was convicted by a U.S. military commission, some $10,000,000 and to issue an apology, based on Canada's involvement in his interrogation at Guantanamo Bay. Meanwhile, the widow of a U.S. soldier he killed and another soldier he wounded are initiating proceedings to collect the state court money judgment they obtained against Khadr in the U.S. Details here. Excerpt:
Tabitha Speer and Layne Morris allege Mr. Khadr was responsible for the death of Sergeant Christopher Speer and Mr. Morris’s injuries in Afghanistan. Two sources say they are expected to ask the Ontario Superior Court as early as Wednesday to uphold a 2015 Utah civil court judgment ordering Mr. Khadr to pay them $134-million (U.S.) for his actions in Afghanistan. 
“They are trying to get an emergency injunction in a Canadian court to have their award in the United States enforced in Canada,” one source said. “Their desire is to have U.S. courts enforced in Canada, which would mean that any money that goes to Mr. Khadr would go to them.”

Threat to judicial independence in Suriname

Pres. Desi Bouterse
Surinamese President Desi Bouterse, on trial in the so-called "December Murders" case, has threatened the military judge, as reported here by the Daily Herald. Excerpt:
Guno Castelen, the chairman of Suriname’s labour party SPA, is worried about “subtle threats” President Desi Bouterse has launched at the judiciary. Discussing the twenty-year prison demand the Military Prosecutor called for last week Wednesday, Bouterse criticised the judiciary and said that his Government would soon come with “necessary measures … within the confines of constitutional law.” 
He did not specify what he meant exactly, but it was enough reason for Castelen to be worried. The opposition Member of Parliament (MP) said Bouterse is obviously trying to intimidate the judge in the case. “He singled out the judge and that is cause for concern,” the SPA leader said. 
The prison demand for Bouterse was lodged by Military Prosecutor Roy Elgin at the height of the tediously moving December Murders trial; Bouterse and 24 other defendants are on trial for the killings on December 8, 1982, of 15 opponents of Bouterse’s then military rule. Elgin also demanded 20 years for another former soldier who is a defendant in the case. For three other defendants he has demanded that the cases against them be dismissed. The trial is ongoing. 
Bouterse, who is serving his second term as the democratically chosen President, responded with scorn to the prison demand. “If God put me here as President, who is a judge to send me away?” he asked on Friday at a meeting with prominent members of his National Democratic Party (NDP). 
Castelen said it was remarkable that the President would take aim at the judge, while at this stage it’s the Military Prosecutor who called for a prison sentence and the judge is not even in play yet. “The President knows the difference between a prosecutor and a judge full well, as much as he knows the difference between a demand and a sentence. He knows that we are past the phase of prosecution and that it is now up to the judge to decide whether and for how long he will go to prison. The fact that he mentions the judge hints that he wants to send a signal. And that signal is meant for the judge,” the SPA leader said.
The trial began in 2007. 

Tuesday, July 4, 2017

Mindanao martial law upheld

By divided vote, the Supreme Court of the Philippines has upheld the imposition of martial law on Mindanao. According to this notice tweeted by the court's public information office, the opinions will be released tomorrow and will presumably be posted on the court's website.

Query: will military courts come next?

Monday, July 3, 2017

Liberian UCMJ to be updated

The speaker of Liberia's House of Representatives is taking steps to move ahead on four long-delayed bills. One of them concerns military justice:
The Uniform Code of Military Justice (UCMJ) aims to reform the military as it rebuilds its forces with an emphasis on human rights and professionalization, including ensuring continued progress and that members act according to the rule of law. 
The law will also discuss pretrial, trial, and post-trial procedures, including modes of proof, for courts-martial, military commissions and other military tribunals, and procedures for courts of inquiry, among others.
This Daily Observer article is sparse on details. The second quoted paragraph seems to track Article 36(a), UCMJ.

Blog contributor Susan Finder in the news

Global Military Justice Reform contributor and big-league China scholar Susan Finder is the subject of this interview with The News Lens. Excerpt:
TNL: You have a fantastic blog [Supreme People's Court Monitor] and you write prolifically in this area. How transparent is the system and what are the resources and sources you use to monitor the courts? 
Finder: The system is not very transparent. But it is an enormous improvement from 20-plus years ago when I first started looking into the Supreme People’s Court. You now have this online database of court judgments. There are studies that show some provinces are better than others, some judges don’t want to upload cases to the database, but it is a big step forward, despite the various limitations there are. 
As far as my own sources of information; I use WeChat, that is one of my big sources, because I can get multiple voices. The Supreme People’s Courts and other courts have their own WeChat outlets, so I can get the latest official documents. There are also many other voices.
Brava! 

Sunday, July 2, 2017

Filing appeals by the Ministry of Defence against favourable disability pension verdicts: a dark chapter comes to a close

Mindless filing of en masse appeals by India’s Ministry of Defence against verdicts of Courts and Tribunals granting disability benefits to disabled soldiers was a major sore point with military veterans.

Thankfully, though reluctantly, the dark chapter seems to have come to an end with a decision having been taken not to pursue such appeals.

A detailed post on the recommendations on this issue (amongst many others) by a Committee of Experts constituted to reduce litigation, and other aspects of this latest development, is available on my blog.

The story has also been covered by The Times of India.

al Qosi case back in the news

Carol Rosenberg
Considering how few cases the military commissions at Guantanamo have tried, they continue to generate interesting issues. The latest, as reported here by the Miami Herald's Carol ("dean of the Guantanamo press corps") Rosenberg, concerns whether automatic appellate review of the case of Ibrahim al Qosi, who has been released from custody, can proceed if his post-release conduct shows him to be an alien unprivileged enemy belligerent. A factfinding hearing has been ordered.

A national myth

Raza Rumi
Raza Rumi, editor of Daily Times, writes here of five Pakistani myths that need to be "buried for good." Excerpt:
Since the ‘historic’ lawyers’ and judges’ movement, we have been hearing that doctrine of necessity has been buried. Proud pronouncements from the Supreme Court of Pakistan often repeated by analysts and politicians do their rounds. While the courts certainly are far freer than they were before, the doctrine of necessity is very much alive and kicking. Take the example of military courts. The apex court ratified military courts established after the 2014 terror attack in Peshawar that killed children and teachers in an army school. The court upheld them and many outspoken lawyers and ostensibly independent analysts also supported these courts. In March of this year, the National Assembly passed 28th Constitutional Amendment Bill that revived the military courts after the initial two-year period was over. It requires no rocket science to note that that such courts are violative of citizens’ rights to fair trial, legal counsel, etc. as guaranteed by the Constitution. There are countless instances where the courts have passed verdicts that fall into the ambit of doctrine of necessity -initially used in 1950s to uphold a constitutional subversion - without naming it. Sixty years later, it remains pretty much a convenient ploy to justify the power arrangements in the country.

Spasibo?

Global Military Justice Reform uses Google's built-in (i.e., free) "Blogger" analytics, from which we are able to tell where visitors are located. Hits over the last day from Russia outnumber hits from the United States by better than 3:1, despite the paucity of posts about Russian military justice reform. This has happened from time to time in the past as well.

Makes you wonder.

Saturday, July 1, 2017

Ex-DPP calls for investigation of SAS

Baron Macdonald of River Glaven, QC
The Sunday Times (London) carries this report of a suggestion by a former Director of Public Prosecutions that an SAS unit be investigated for possible summary executions. Excerpt:
Lord [Kenneth] Macdonald, the former director of public prosecutions, called for an independent judicial inquiry to examine whether the investigation into allegations of “serial murders” by the SAS had been deliberately impeded by the Ministry of Defence (MoD) and the military. 
In a statement to The Sunday Times this weekend, Macdonald said: “Soldiers in theatre face extreme stress and danger on our behalf and this is not to be forgotten. But allegations of summary military executions and the falsification of evidence to cover up serial murder are matters that any civilised society is bound to investigate robustly. 
“It would be a major scandal and without precedent if the MoD has intervened deliberately to subvert this process. In doing so, they would foolishly risk the reputation of the British Army. 
“Only a judicial inquiry is now likely to be able to determine whether this investigation had really run its course, or whether the truth is that it was deliberately stymied by a combination of the MoD and military establishment.”

Happy Canada Day


Best Wishes for the Fourth of July Holiday Weekend


Friday, June 30, 2017

Lahore High Court Bar Association breaks new ground

. . . and not in a good way. Having previously threatened to expel any member who defended convicted capital defendant Kulbushan Jadhav, the Lahore High Court Bar Association has filed some kind of pleading in the Lahore High Court urging rejection of clemency. It is incomprehensible why an association of attorneys would do either of these things. Indeed, this is so far off the wall that Global Military Justice Reform will not even award the LHCBA the uncoveted George III award for retrograde activities.

Thursday, June 29, 2017

Franco-era military court convictions voided

The Catalan Parlament has unanimously invalidated all cases tried by military courts in Catalonia during the Franco dictatorship between 1938 and 1978. Details here, in Spanish.

Tunisian military justice system and its jurisdiction over civiilans

The Tunisian media has published earlier today an interesting piece about their national military justice system. The article opens by stating that reliance on the of military justice to try civilians (bloggers, journalists, politicians, lawyers, businessmen, etc.) arouses the outrage by civil society which considers this as plain and simple violation of their human rights.

The article focuses on the launch of “Operation Clean Hands” which led to the arrest and trial by a military tribunal of businessman Chafik Jarraya accused of corruption; he is also being investigated for’ dealing with a foreign power in peacetime, crimes that are liable for imprisonment or even the death penalty. The Director of Human Rights Watch in Tunisia opined that “In a real democratic transition, military trials for civilians or secret detention have no place, regardless of the seriousness of the charges."

Me Armor Saadoui, an experienced counsel, agrees with the need to have a military nexus before trying anyone before a military tribunal: “Military courts must remain special courts, reserved for military crimes and offenses in the strict sense, that is to say within the barracks, relating to the military function" particularly since in his opinion,” military justice serves as a tool of political control. He adds: "There is as yet no independence of justice in Tunisia, both in legal texts and in their application." Meanwhile, the number of cases dealing with civilians brought before military tribunals continues to grow.

House votes down random jury selection

"Honestly, I didn't know that … I was so closed-minded, that I was a rapist, that I was a murderer, that I was a sexual assaulter, that I was all of these things until I came to Congress and heard often from my colleagues how horrible I was when I was in uniform as a commander and how incapable I was in being able to meet justice and make decisions," [Rep. Steve] Russell [R.-OK] said during the committee debate. "But now I learn that maybe I just didn't realize who I was."

From the Washington Examiner's account of the debate in the U.S. House of Representatives on an amendment offered, unsuccessfully, by Rep. Jackie Speier [D.-CA], to require random selection of court-martial members. Rep. Russell is a retired Army lieutenant colonel.

Tuesday, June 27, 2017

Why is this case in military court?

A Hamas military court in Gaza has convicted four drug dealers and sentenced them to death, according to this Al Jazeera account. Excerpt:
Last year, Hamas politicians passed a law deeming drug dealing to be a national security threat, which opened the door for trying drug traffickers before military courts. Nasser Suliman, the head of Gaza's military judiciary, said there were at least 30 cases of drug dealing before his courts. 
The two who received death sentences in March were government security officers "who were not deterred from previous lighter punishments and returned to the trade", Suliman told Al Jazeera.
Under military law, penalties against dealers are usually stricter than those granted by the civil code, Suliman said. Penalties are also lighter for users, as compared with dealers: "If an addict resorts to treatment, he is spared from punishment."
Why try drug cases in a military court?

Trump administration sends a new (old) case to a military commission

The Trump administration has sent the case of a long-time Guantanamo detainee to a military commission for trial. The case charges an Indonesian citizen with attacks in that country in 2002-2003. Details here, courtesy of The Daily Beast. Excerpt:
A Trump administration official familiar with an internal and still-unfolding debate over the future of detentions told The Daily Beast that charging Hambali was “short-sighted” and “indicative of a lack of understanding of the complications of U.S. detention policy,” particularly without a broader policy framework for the Hambali case.
“It’s kicking off a procedure that will take an indefinite period of time. This system doesn’t work,” said the official, who was not cleared to speak publicly.

Is the South Sudan rape trial a publicity stunt?

Roger Alfred Yoron Modi writes here about an ongoing rape court-martial in South Sudan. Excerpt:
A trial of thirteen South Sudanese soldiers accused of raping foreign aid workers and killing a local colleague is ongoing in Juba. The events being examined occurred in July 2016 at the Terrain Hotel following a three-day battle in the capital. 
The fact that these government troops are being tried may appear to be a positive development amidst the country’s devastating conflict, lack of accountability, and dire humanitarian situation. It will be for the victims if justice is served. 
However, in terms of tackling impunity in South Sudan more broadly, the trial is sadly little more than a publicity stunt – and one that could even forestall wider justice in the country. 
The incidents at Terrain Hotel are a drop in the ocean when it comes to the extensive crimes committed since the start of the war. Moreover, the fact that the case is being heard in a military court further undermines the establishment of the Hybrid Court, the body supposed to investigate and prosecute such crimes in the interests of all South Sudanese.

War crimes v. crimes against humanity v. murder

How important is it to pursue charges of crimes against humanity or war crimes charges as opposed to simply pressing murder charges? The UN has objected to the abandonment of the first two in favor of the third in a Democratic Republic of Congo court-martial. According to this account:
"We regret" the tribunal's decision, Jose Maria Aranaz, director of the United Nations joint human rights office (UNJHRO) and representative of the High Commissioner for Human Rights in the DRC, told AFP. 
"Prosecuting these crimes is a way of preventing other legal violations and further excessive use of force by the armed forces," Aranaz said. 
The seven soldiers were on trial for war crimes and other offences -- including murder, mutilation and cruel, inhumane and degrading treatment -- apparently committed in the Kasai region. 
They are being prosecuted after a video emerged in February showing a group of uniformed men opening fire on civilians, then walking among at least 20 bodies. 
The alleged incident occurred during an operation in a village called Mwanza Lomba in Kasai, according to the government. 
On Saturday prosecutors in the trial, which began on June 5, dropped the war crimes charges but kept the murder charge and others. 
"You can justify dropping the war crimes charges because there is no declared conflict in the Kasai," Aranaz said. 
But it would have been important to prosecute the officers for crimes against humanity because it would send "a strong signal in the direction of those who are implicated in the violence in Kasai." 
Spiralling unrest 
An attorney at the trial, Jimmy Bashile, told AFP that military prosecutors, pressing charges of murder against five of the accused, on Monday sought jail terms of life or 20 years against two majors, a captain, lieutenant and a sergeant-major. 
They also called for a 10-year term against a sergeant-major for failing to denounce the crimes and a 12-month suspended term against another non-commissioned officer for handling images sent to him by one of the accused.

Monday, June 26, 2017

A look inside Venezuela's military courts

Americas Quarterly has this vivid story about the use of military courts to try civilians in Venezuela. Excerpt:
This has grave consequences for defendants. Lawyers familiar with Venezuela’s military court system say that it operates under different rules than civilian courts, and puts detainees at a clear disadvantage. For a start, the judges are military officers picked by the Ministry of Defense, and so depend on the executive branch for their jobs. The prosecutors tend to be officers of lower military rank than the judges, and are therefore unlikely to feel free to make independent decisions, said Ali Daniels, a legal expert at the Venezuelan NGO Acceso a la Justicia
Private lawyers are allowed to represent detainees, but they’re often denied access to police depositions, which are the basis for accusations against their clients. When they can see depositions, they are not allowed to get copies of them. 
“It's a form of intimidation,” Daniels said. “They try to make every step so hard that you eventually want to give up.” 
In many cases, the government has done little to present its legal case against demonstrators. In [Carlos] Ramírez’s case, the military judge granted the prosecution 45 more days to find additional evidence. The defense, however, is hamstrung, since they don’t know the exact contents of the testimony they are challenging. The declaration read at Ramírez’s hearing has not been made public or available to his lawyers, said Pedro Troconez, one of the lawyers from Barquisimeto, who later filed a complaint to be allowed onto Ramírez’s case.

New rules in India may affect independence and quality of Armed Forces Tribunal

The Government of India recently issued The Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017. These rules affect a variety of tribunals, including the Armed Forces Tribunal, which has appellate review power over courts-martial and other military personnel matters. Global Military Justice Reform contributor Wing Cdr. (ret) UC Jha has written this analysis for DNA India:
On June 1, 2017, the Ministry of Finance notified The Tribunal, Appellate Tribunal, Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017 in the Gazette of India. The Rules, effective from June 1, have amended 19 existing laws, including the Armed Forces Tribunal (AFT) Act, giving wide-ranging powers to the government pertaining to the appointment and removal of members to various tribunals. In the past, the government used to appoint departmental Standing Committees and invite comments from the public before notifying such rules into the law. For instance, AFT Bills of 2005 and 2012 were examined by the Parliamentary Standing Committee on Defence. 
Chairperson and members 
In contrast to earlier provisions in the AFT Act, where only a retired judge of the Supreme Court or a retired chief justice of a High Court could be appointed as Chairperson, now a serving judge or any person “who is qualified to be a judge of Supreme Court” could be appointed as the Chairperson of the Tribunal. There is no change in the qualification of a judicial member and a serving or retired judge of a High Court could be appointed as such. 
As far as the AFT’s administrative members are concerned, so far the appointment was confined to retired major generals or equivalent ranks in two other services and retired advocate generals. The Rules of 2017 now provide that any person “of ability, integrity and standing having special knowledge of, and professional experience of not less than 20 years in, economics, business, commerce, law, finance, accountancy, management, industry, public affairs, administration or in any other matter which in the opinion of the Central Government, is useful to the Armed Forces Tribunal” could be appointed. The amended law does not require a member to have any expertise in law or military ethos. This dilution of membership of an important appellate tribunal appears unjustified. 
Search-cum-Selection Committee 
Under the Rules of 2017, the chairperson of the AFT shall be appointed by the central government in consultation with the Chief Justice of India. Earlier, the Chairperson and other members (judicial and administrative) of the AFT could be appointed only by the President, after consultation with the Chief Justice of India. The posts of Vice-Chairperson and judicial and administrative members of the Tribunal will now be filled by a “Search-cum-Selection Committee” which shall consist of the Chairman and three members. The four-member Search-cum-Selection Committee will consist of one Supreme Court judge (nominated by the Chief Justice of India), Chairperson of the AFT (appointed by the government), the Defence Secretary and another executive; thus giving a majority say to the government in selection of members for the AFT. In addition, the criteria for the removal of members have been diluted and the Ministry of Defence will have the power to constitute a committee to recommend removal of a member. 
The Supreme Court has earlier made it clear that the selection committee for appointments to tribunals should be balanced with members from the judiciary and the executive, rather than loaded in favour of the latter. A Constitution Bench of the SC, in the case of Madras Bar Association v. Union of India (2010), had struck down provisions related to the National Company Law Tribunal because the five-member selection committee had only one member from the judiciary while the rest were from the executive. The Rules of 2017 have amended laws to open the doors for the government to usurp powers pertaining to the appointment and removal of members of the AFT. The amendments introduced by the Rules of 2017 appear unconstitutional. 
The armed forces have an independent legal system. By virtue of section 152 of the Army Act, trial by a court martial is a judicial proceeding and court martial is a court within the meaning of Criminal Procedure Code. The power of judicial review over the military legal system must be exercised by independent, impartial and qualified persons, maintaining the standards of a High Court.
Passing over the strange -- to American eyes -- procedure under which the executive branch may amend legislation, it does appear that the 2017 Rules have the effect of eroding the quality and independence of the AFT bench. Of course there are fundamental questions surrounding the AFT more generally, such as why non lawyers, whatever their other credentials, should be voting members in the first place of what is, after all, a court of law. Issuance of the 2017 Rules without prior opportunity for public comment also seems a bad business, and Wing Cdr. Jha is quite right to point it out. Readers in India are invited to comment on the constitutionality of the new rules. Will Madras Bar doom them, as he predicts? (Please comment under your real name.)

Sunday, June 25, 2017

Consent is not enough

President Miriam Naor
Supreme Court of Israel
The High Court of Justice in Jerusalem has rejected a government appeal seeking to overturn a ruling concerning the power of military officials to conduct consent searches of soldiers' telephones unless they have a warrant. The Jerusalem Post has the story. Excerpt:
The High Court of Justice rejected a military prosecution appeal on Monday that sought to overturn a previous court ruling barring warrantless searches of soldiers’ cellphones. 
The decision led by the court’s president Miriam Naor did not take a stance on the military prosecution’s argument – that only a soldier’s consent is needed to search his or her cellphone, not a warrant.
However, Naor said that legislation should be considered, not an appeal in the courts, if warrantless searches are necessary. 
The High Court said that a previous ruling by a military court of appeals in November 2016 stands. The decision requires the military police to obtain a warrant to search soldiers phones, even if the soldier consents to the search.
“The fundamental question before us is whether the consent of the suspect is adequate in order to authorize investigators to search a mobile phone – this question will remain theoretical and will not affect the outcome of the procedure,” the court’s decision said.

Kings Point and sexual misconduct

Newsday, the Long Island newspaper, has this report on steps being taken to deal with sexual misconduct at the U.S. Merchant Marine Academy. Cadets at Kings Point are not subject to the Uniform Code of Military Justice, but the issues that can arise replicate those at the other service academies. MMA is located in the Department of Transportation's Maritime Administration. Excerpt from the article:
After Newsday’s inquiries about reforms to the sexual assault response program, academy officials said last week that the school is in the process of hiring a Special Victims Counsel.
The 74-year-old school, which comes under the U.S. Department of Transportation, does not conform to the Uniform Code of Military Justice, the rules and regulations that define the justice systems at the academies for the Army, Navy, Air Force and Coast Guard. That has put USMMA in a unique position, potentially hampering efforts to improve the reporting and judicial process for assault victims on the Kings Point campus, lawmakers and advocates said. 
USMMA, with its accreditation placed on warning by the Middle States Commission on Higher Education in June 2016, is under increased scrutiny to address its efforts to prevent sexual assault and sexual harassment, as well as to correct weaknesses in governance and leadership. The commission’s decision on whether the academy’s leaders have done enough to return to good standing is expected later this week. 
Changing the Merchant Marine student culture from one that blames the victim to one that advocates for the victim was among the recommendations in an independent study released in January by Logistics Management Institute of Virginia. The 138-page audit, commissioned by the Transportation Department, described victims’ lack of trust in the system and noted that the absence of independent legal counsel for victims worked to “hinder the effectiveness of the Academy’s response to sexual assault.” 
Among other reforms the academy should undertake, the report said, were creating a policy that prohibits retaliation and ostracism; establishing a 24-hour helpline for confidential reporting of sexual assault, both on campus and during the intensive Sea Year training program, modeled on the helpline used by the other service academies; and setting up a forum for victims to exchange information with leadership and other victims.

The litigation track bill

“Because JAGs transfer so frequently, most do not gain the necessary experience to try cases, defend the accused, or represent a survivor adequately,” she said in a statement. "Moreover, JAGs are encouraged to have a broad range of experience, which means that a JAG who has very little experience trying cases may be assigned to a complex sexual assault case. Our service members deserve better. Our bill will change that and model the military justice system after the civilian system where lawyers become experts in their fields.”

Sen. Kirsten Gillibrand (D-N.Y.) on a bill that would require all branches of the U.S. armed forces to create a specialized litigation career track for judge advocates. Sen. Joni Ernst (R-Iowa) co-sponsored the bill.