Sunday, December 31, 2017

By the numbers

As Global Military Justice Reform closes the books on 2017, here are the cumulative data on the nearly four years since our founding on January 12, 2014:

Views: 513,256
Jurisdictions: 179
Posts: 3994
Comments: 541
Contributors (present roster): 21

Many thanks to everyone who has made this possible. Please keep viewing, posting, commenting (real names only), sending suggestions to the Editor, and telling your friends about the blog.

From the glass-enclosed newsroom high above Global Military Justice Reform Plaza, best wishes for a safe, peaceful, healthy and prosperous 2018.

Saturday, December 30, 2017

Human rights groups report on Bahraini military courts

Four regional human rights organizations -- the Bahrain Center for Human Rights, Gulf Institute for Democracy and Human Rights, Bahrain Forum for Human Rights and Salam for Democracy and Human Rights -- have issued a 40-page joint report titled Death or Confession, Bahrain: Secret Military Courts Sentence Civilians Forced to Confess Under Torture (December 2017).

Friday, December 29, 2017

Eat your veggies

Here's one we missed: the Canadian Forces' "Veggies Case." Excerpt from CBC News's account:
"Vegetables are supposed to be good for us."

These were the actual words spoken by a judge in the verdict at a court martial in St. John's on Friday.

Judge Sandra Sukstorf, a military commander with two master's degrees, ruled there was no evidence Master Corporal Greg Young ill-treated a subordinate.

Young, who was accused of making a trainee eat mixed vegetables until he vomited, was found not guilty.

Witnesses testified Young insisted the trainee eat his vegetables, while peers cheered him on. The trainee himself said he did not vomit or feel forced.
The military judge's detailed Reasons for Finding in R. v. Young, 2017 CM 2006, are available here, on the website of the Chief Military Judge. 

A mixed (and slow) ruling from the Armed Forces Tribunal

On December 20, 2017, India's Armed Forces Tribunal got around to handing down its mixed decision in the case of a lieutenant general who had been court-martialed over eight years earlier for "unbecoming conduct" by affording preferential treatment in connection with a land scam. The officer's general court-martial conviction was affirmed on one out of three surviving specifications. The AFT left the sentence to dismissal intact but restored his pension rights with effect from the date of the judgment. Details here from the Indian Express. The 61-page order in Prakash v. Union of India, AFT Dkt. No. 469/2013 (Delhi Bench 2017), can be found here. The two-member bench stated that the decision was not precedential and limited to the specific facts and circumstances (the accused's long creditable service).

The litigation proceeded at a slow pace:
  • Court of Inquiry completed, Dec. 5, 2009
  • Show Cause Notice, Jan. 11, 2010
  • Show Cause Notice withdrawn, disciplinary action notice issued, Jan. 29, 2010
  • AFT grants partial relief, Feb. 2, 2010
  • Supreme Court dismisses petition, Sept. 9, 2010
  • Completion of general court-martial, Dec. 3, 2011
  • Confirmation of proceedings, May 21, 2012
  • Post-confirmation petition filed, July 2012
  • Post-confirmation petition denied, Aug. 14, 2013
  • AFT case filed, sometime between Aug. 14 and Dec. 31, 2013
  • AFT decision, Dec. 20, 2017
The AFT took roughly four years to decide the case.

For your 2018 reading list

The Editor recommends East West Street by British barrister and law professor Philippe Sands QC. It's a fascinating read, tracing the competing themes of crimes against humanity and genocide at Nuremburg and thereafter, spearheaded by two men who studied law a century ago at the University of Lviv (Lemberg, Lvov), Sir Hersch Lauterpacht QC and Raphael Lemkin. Mr Sands interweaves their work and the tragic effects of World War II on their families with its effects on his own family.

Bernard-Henri Lévy favorably reviewed the book here last year in The New York Times.

Indian adultery court-martial: reconsideration leads to increased sentence

The Indian Express reports here on an example of the country's old-fashioned court-martial system:
A General Court-Martial (GCM) of the Army has revised the initial punishment it awarded to a Brigadier, on charges of committing adultery with the wife of a Colonel, and has increased it from loss of seniority to cashiering from service and three years of rigorous imprisonment.

The GCM had earlier awarded the Brigadier ten years loss of seniority and a ‘severe reprimand’ in its sentence delivered in October this year. The punishment had been awarded after the accused pleaded guilty to the charges against him.

However, the Army Headquarters turned down the punishment awarded and sent the court martial’s verdict back for reconsideration. The revised verdict was announced on Thursday in a sitting of the court martial in Binaguri in West Bengal.
Three years for adultery?

In the U.S., there'd be a substantial argument about unlawful command influence:
[T]he Chief of Army Staff, General Bipin Rawat, has been very tough on offences involving moral turpitude and has given instructions that these matters should be dealt severely.
Watch for this case to be appealed to the Armed Forces Tribunal. The Indian military justice would benefit from an overhaul.

Thursday, December 28, 2017

Don't like the way a case is going? Get rid of some judges

Okay, this one (from Peru) is complicated. The question is whether Peruvian Navy personnel committed a crime against humanity when they put down a prison mutiny in 1986. The Constitutional Court ruled that there was no statute of limitations. Whereupon, with the criminal case still pending, former military officers persuaded a congressional committee to recommend suspending three justices and barring a fourth for 10 years. Enter the Inter-American Court of Human Rights, which imposed a stay until it can hear the case. Details here.

#MeToo @DoD

Stars and Stripes' Nancy Montgomery writes:
Advocates for military women are planning a #MeToo demonstration outside the Pentagon next month to add their voices to the movement that has put a spotlight on workplace sexual harassment and extinguished the careers of powerful men in entertainment, media, technology and politics.

The event is envisioned to allow military women and their supporters throughout the Washington area to raise awareness, show solidarity and share stories about sexual assault and harassment in the military.
The Service Women's Action Network (SWAN) issued this press release:
The Service Women’s Action Network, joined by participating organizations Protect Our Defenders and the Military Law Task Force of the National Lawyers Guild, will hold a #MeTooMilitary Stand Down on Jan. 8, 2018 from 8 a.m. to 9 a.m. outside the Pentagon to raise awareness about military sexual assault.

The demonstration is planned as a peaceful, nonpartisan stand down where survivors will be encouraged to share their stories and distribute information on the sexual assault and harassment epidemic in the military to personnel around the Pentagon Metro Station.

“We are demonstrating outside the Pentagon to ensure the voices of service women and men are not left behind in the #MeToo movement and that the reckoning that has swept other industries in the nation also takes place in the military,” said Lydia Watts, SWAN CEO. “Despite major efforts undertaken by the military in the last decade, sexual assault and harassment continues to be widespread in the military, victims still face retaliation if they report and, and justice for victims remains elusive.”

In 2016, the Pentagon received 6,172 sexual assault reports, a record high number, while it estimated that about two thirds of victims still did not report their sexual assault. About six in 10 of those who reported said they had faced some form of retaliation for reporting, and only about four percent of reported sexual assault cases ended in conviction. As an institution that holds itself in high esteem because of its good order and discipline, the sexual assault epidemic in the military denotes a major failure by military commanders.

All are welcome to attend and stand in solidarity with our nation’s service women and men as SWAN amplifies the voices of the women and men affected by the sexual assault and harassment epidemic in the military.

New scholarly critique of DOD LOW Manual: definitely critical

In 2015 the U.S. Department of Defense (DOD), specifically the DOD General Counsel, issued its DOD Law of War Manual, replacing a 1956 Army field manual that had previously outlined legal obligations binding on U.S. troops during armed conflict. Updated twice since 2015, this huge DOD product has generated much debate on national security law blogs, and has even been the subject of an American Bar Association workshop which issued its detailed report in early 2016.

Yet it is has generated little in-depth scholarly attention, until now. Professor Dave Glazier, a retired Naval surface warfare officer who both earned his J.D. and became a law professor after his pre-9/11 military career, recently published a clearly written and comprehensive critique of this LOW Manual.  “Failing Our Troops: A Critical Assessment of the Department of Defense Law of War Manual,” co-authored by a team of able Loyola Law School students (now attorneys), provides sharply-worded and often astute appraisals of the Manual’s substantive content, its format, and its sources.

This article should be welcomed and closely read by all interested in this arena, for it offers numerous well-reasoned and wide-ranging observations. For example, the article’s initial critical assessment of the Manual’s confusing and inaccurate conflation of the jus in bello and jus ad bellum is thought-provoking, and supports the authors’ conclusion that portions of the Manual seem to be written to justify current “war on terror” operations rather than representing the actual state of binding international law. The article’s complaint that the Manual fails to provide guidance regarding the impact of international human rights instruments on the legality of U.S. military operations demonstrates the type of perceptive insights made throughout, as does the article’s critique of the expansive nature of the Manual’s treatment of the definition of military objective.

Also illustrative of the article’s arsenal of solid critiques is the section on the Manual’s legal “about-face” regarding the U.S. view on the legality of expanding bullets. While this reviewer doesn’t necessarily agree with the article’s conclusions on this subject, the authors make terrific points about the flawed legal reasoning—the analytical process—that the Manual employs to reach its debatable conclusions. In fact, Glazier and his team’s shining moments are found in their article’s carefully-crafted process critiques. For example, the article insightfully highlights the Manual’s deliberate choice to use archaic legal sources that conveniently predate Additional Protocols I and II and many international human rights instruments, a choice the article points out was perhaps made in order to ignore extant legal interpretations that run contrary to DOD desires.

Wednesday, December 27, 2017

15 hanged following Egyptian military trial

In the largest mass execution since the overthrow of King Farouk, Egypt has hanged 15 men following their conviction in a military court, according to this article in The New York Times. Excerpt:
“These death sentences and executions are a flagrant breach of international law,” Maya Foa, director of the international human rights organization Reprieve, said Tuesday. “Trials in Egypt routinely fail to meet basic fair trial standards, and this is especially so in mass trials and military tribunals, as in this case.”
Attorney Ezzat Ghoniem
said that the lawyers were not given time to present an appeal after the defense minister signed off on their executions a week ago.

“They are meant to give you 15 days after the signing,” Mr. Ghoniem said. “They got six. How is that fair?”

Islamist activists who know the families said that two of the 15 had bruises and cuts on their bodies, suggesting they had been tortured, and that none of the families were given the chance to say goodbye to the condemned before the executions, as required by Egyptian law.

Tuesday, December 26, 2017

Failure to report court-martial convictions leads to lawsuit by three cities

Politico reports:
The cities of New York, Philadelphia and San Francisco have filed suit against the Pentagon for repeatedly failing to report military convictions to a federal database designed to keep firearms out of the hands of criminals.

The lawsuit was filed in federal district court in Virginia on Friday in cooperation with former Arizona Democratic congresswoman and shooting victim Gabby Giffords’ gun control advocacy group.
Richard A. Oppel Jr.'s New York Times article about the case is available online here.

Drilling down on preferences for PLA personnel, families, & the PLA itself

The editor recently posted a Global Times article on the higher people's courts in five northern Chinese provinces and the Northern Command Military recently issuing a notice speeding up preferences for military members. It reflects recent reports in the Chinese media. As is so often the case with Global Times English- language reports, it misses some of the crucial detail from Chinese reports.  A bit of internet research has turned up the following:
1. The notice was issued in August 2016, but the full text is still not available. This appears to be normal practice with military-related legal matters, as readers of Global Military Justice Reform will have noticed. 
2. The notice appears to be one of a number of such arrangements between theater command courts and civilian courts, aimed at better coordination between the civilian and military justice systems--the Central and Southern Commands have worked out analogous arrangements as well (see this report from earlier this year). 
3. The notice appears to be an evolution of the 2014 Supreme People's Court policy document on Expanding Capacity in Safeguarding the Interests of National Defense, Guaranteeing the Rights and Interests of Military Personnel, and Military Dependents. This blog post discusses some of the special characteristics and odd issues of these documents.
4. According to the 2017 report linked above, in the past year or so, the military courts have dealt 1319 matters, resolved 763, and recovered economic losses of 134 million RMB (20 million USD). The military and civilian courts have handled 5224 cases, of which 1678 were accepted by local intermediate courts (implying large amounts of money in dispute) of which 1453 have been resolved. [Although it is not specified, it seems likely that a significant number are related to the decision of the military to extract itself from business operations (discussed here).]
5. Quite a few military-related judgments are being posted on the Supreme People's Court's judgment database. When time permits, I'll take a look at some of them.
Editor's note: many thanks to Susan Finder for her continuing invaluable coverage of Chinese military legal matters.

Monday, December 25, 2017

Not military justice, but

U.S. District Judge Tanya S. Chutkan has issued a decision affording the ACLU Foundation "immediate and unmonitored access" to a U.S.-Saudi dual national in U.S. military custody for the limited purpose of determining whether he wishes to have the organization, which asserts "next friend" standing, litigate a habeas corpus petition on his behalf. Judge Chutkan also ordered the Department of Defense to refrain from transferring the detainee until the organization informs the court of his wishes. The case is American Civil Liberties Union Foundation v. Mattis, Civil No. 17-2069 (D.D.C. Dec. 23, 2017). Charlie Savage has the story here in The New York Times.

Six sentenced to death in Bahrain

A Bahraini military court has sentenced five civilians and one soldier to death on terrorism charges. Here is the Bahrain News Agency's report:
The Military High Court today issued its ruling in the case of 18 members of a terrorist cell, ten of whom appeared in custody and eight were fugitives in Bahrain or abroad in Iran and Iraq. 
The defendants were accused with the formation of a terrorist cell, attempting to assassinate the BDF Commander-in-Chief and committing other terrorist crimes. 
The court convicted and sentenced the six defendants to capital punishment, 15 years years in jail and the revocation of their Bahraini nationality. They are Mubarak Adel Mubarak Mahanna (Soldier), Fadhel Al Sayed Abbas Hassan Radhi, Sayed Alawi Hussain Alawi Hussain, Mohammed Abdulhassan Ahmed Al Metghawi, Murtada Majeed Ramadan Alawi (Al Sindi) and Habeeb Abdullah Hassan Ali (Al Jamri). 
The court also convicted and sentenced seven defendants to seven years in jail and stripped them of their Bahraini nationality. 
They are Mohammed Abdulhassan Saleh Al Shehabi, Mohammed Abdulwahid Mohammed Al Najjar, Hussain Mohammed Ahmed Shehab, Mohammed Yousef Marhoon Al Ajmi, Hussain Ali Mohsen Baddaw, Sayed Mohammed Qassim Mohammed and Ali Jaffar Hassan Al Rayes
The court acquitted five defendants: Ali Ahmed Khalifa Salman (Al Karbabadi), Hussain Essam Hussain Al Durazi, Muntazhir Fawzi Abdulkareem Mahdi, Rami Ahmed Ali Al Aryash and Mohamed Abdullah Ebrahim Abbas
All the judicial sureties [protections? - ed.] were granted by the Military Judiciary in compliance with the 2002 Criminal Procedures Law and the 2002 Military Judiciary Law, including access to defence lawyers. 
The defendants have the right to challenge the ruling of the court of first instance at the Military Appeals High Court and the Military Court of Cassation according to the provisions of the law. 
Representatives of human rights institutions and societies and media and several relatives of the defendants attended the court session.
Human rights jurisprudence strongly disfavors the trial of civilians by military courts.

Sunday, December 24, 2017

Legislative transparency

Contrast the closed congressional process that preceded enactment of the Military Justice Act of 2016 with the outreach undertaken in New Zealand in connection with that country's Parliament's consideration of military justice legislation.

Free speech and encouraging disobedience

“Calling for IDF soldiers to refuse commanders’ orders is outrageous. However, freedom of speech has a special constitutional status and constitutes an essential condition of democracy and the protection of other fundamental rights.”

Bahraini opposition to military trials

The primary Bahraini Shiite opposition group has called for an end to the revived practice of trying civilians in military courts. Details here.

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

Calendar preference for PLA personnel, families

Global Times has this report about speeding up cases involving People's Liberation Army personnel and their families:
A military court has pledged to accelerate the processing of military cases in cooperation with local high courts, prompting a military expert to call for better protection of military members and their relatives.

A notice aiming to guarantee the legal rights of military members and their families was released by the People's Liberation Army (PLA) Northern Theater Command together with the local high courts of five provincial regions in North and Northeast China, according to PLA Daily on Sunday.

Priority should be given to military cases with regard to filing suit, trial and administration, the notice said, according to the People's Daily.

Litigation guidance should be provided to the subjects of a lawsuit if necessary and legal aid agencies are encouraged to aid military members or their families in need, it said.

"Improper or delayed handling of military cases could lead to soldiers' disappointment, which could lead to lower capability in the whole army," Li Jie, a Beijing naval expert told the Global Times on Sunday.

"The military's capability is rather important in today's complex international situation," he said.

The concept of families of military personnel enjoying priority in legal actions was extended to include military members' parents-in-law and siblings, PLA Daily said.

According to Li, society should pay more attention to the legal rights of military members and their families to ensure they can focus on their duties without being distracted by worrisome domestic issues.

Li also suggested that national laws and regulations should be made to strengthen the protection and maintenance of military personnel's legal rights.
In-laws? Siblings? It's a morale or readiness issue if their litigation doesn't move to the front of the queue?

International Society for Military Law and the Law of War

Just noticed this year-end tweet from the International Society for Military Law and the Law of War:

Are you a practitioner or an academic interested in the legal aspects of military activities? If yes, consider applying for membership of one of our National Groups () or fill out our membership application form ().
8:28 AM - 23 Dec 2017

Just do it.

"Chestnuts roasting on an open fire . . ."

Saturday, December 23, 2017

No public kissing and hugging on shore leave

HMAS Anzac (FFH 150)
For an Australian case that may have escaped your attention, consider Komljenovic v Chief of Navy [2017] ADFDAT 4. The Defence Force Discipline Appeal Tribunal addressed two issues: the appearance of judicial bias and whether the accused's conduct was likely to prejudice service discipline. It is hard not to be interested in an appellate judgment that begins as follows:
1    It is a matter of history that, in May 1941, British, Australian, New Zealand and Greek troops were heavily engaged in a desperate but ultimately unsuccessful defence of the Greek island of Crete from a German airborne and seaborne invasion (Australian War Memorial War History, Crete, Kreta: the battles of May 1941: accessed, 28 April 2017). The vital ground for the defence of the island comprised the airfields and ports along the north coast of the island. The ports were at Souda (then more commonly spelled, “Suda”) Bay and at the city of Chania. Ships of the Royal Navy and of the Royal Australian Navy (“the RAN”) made valiant efforts to interdict the seaborne elements of the invasion force and, once it became apparent that the invasion force had reached overwhelming strength, to evacuate the defenders. For their service in the waters around Crete in the Mediterranean Sea between 20 May and 1 June 1941 HMA Ships Perth, Napier, Nizam, Stuart, Voyager, Vampire, Vendetta and Waterhen received the Battle Honour, “Crete” (RAN website: accessed, 28 April 2017). 
2    Some 74 years later, another Australian warship, HMAS ANZAC, came to Chania. The port city and Souda Bay, as with the rest of Crete, had long since reverted to peace and tranquillity. The ship was en route to the Gallipoli Peninsula, Turkey, where she and her crew were to undertake representational duties, in particular to participate in events related to the commemoration of the centenary of the Landing at ANZAC Cove on 25 April 1915. 
3    A recollection of this history is not irrelevant to the disposition of this appeal. For it serves as a reminder that a warship and her crew must sometimes undertake roles which have no equivalent in civilian life and which correspondingly demand related norms of conduct by that crew, which also differ from, and are more exacting than, those of civilian life. The very name, “warship” indicates this.
Among the court's observations on the merits of the charge:

An anniversary

Capt. Alfred Dreyfus
On December 22, 1894, Capt. Alfred Dreyfus of the French Army was convicted of treason. Only after he served time on Devil's Island was he vindicated. The case, which was tainted by antisemitism, manufactured evidence, and unlawful command influence, split France for decades.

A court-martial that is soft on crime?

The Central African Republic's Permanent Military Tribunal is too lenient, according to this Journal de Banqui account. Excerpt:
At a time when the government is beginning the rearmament of the Central African armed forces, it is imperative that soldiers who commit crimes be convicted on the basis of the crimes committed. This would set the tone and serve as an example. Unfortunately, the military court, at its last session, missed the opportunity to concretize the break and to establish a new dynamic at the height of the reforms advocated by the new authorities in the field of military justice through the new military code which establishes military courts in several cities of the country.
Suspended sentences have been issued in several significant cases. 

Friday, December 22, 2017

Impunity risk in Rio military raid

Human Rights Watch reports:
Brazilian authorities should conduct thorough, independent, and impartial investigations into the killing of eight people during a joint army and Civil Police raid in a low-income Rio de Janeiro neighborhood on November 11, 2017, Human Rights Watch urged today. A new law that expands the jurisdiction of the military justice system to these situations is hampering the investigation, and federal military prosecutors are not doing enough to investigate the case.

A modest proposal for solving the judicial vacancies problem

Lt. Col. Shane R. Reeves and Maj. Ronald Alcala, who teach at West Point, contend in this Foreign Policy blog post that the current spate of vacancies on the federal bench can be solved by resorting to retired military judges. Excerpt:
Frequently overlooked and underappreciated, these practitioners represent a largely untapped resource. Considering them for positions on the federal bench would be prudent for several reasons. First, most retired military judges already have extensive experience adjudicating cases, particularly in the field of criminal law. Second, as retired members of the armed forces, these judges would bring a diversity of thought and experience to the bench. Third, having completed careers in an institution protective of its apolitical character, retired military judges might more easily gain bipartisan support for confirmation. Additionally, due to the existing military retirement rules, many of these officers will leave the service at a relatively young age and seek continued employment. Accordingly, because of their prior military experience and further career aspirations, some of these officers likely would not shy away from the demands of the federal bench.
The authors argue, for example:
In fiscal year 2016, for example, the Army Trial Judiciary consisted of 23 active Army military trial judges and 21 Army Reserve military trial judges. These judges presided over a total of 815 courts-martial, for an average of 18.5 trials per judge. By comparison, federal district court judges completed an average of 17 trials per judgeship during the same period.
Is this comparing apples and oranges? The figure for courts-martial per judge seems to encompass all cases (many of which involve guilty pleas), while that for civilian federal criminal cases ("trials") seems to include only those that are contested.

How valid are the authors' other arguments?

Thursday, December 21, 2017

Military sex offenses in the spotlight in South Korea

The United States is far from alone when it comes to the challenge of preventing and punishing sexual abuse in the country's armed forces. The Korea Herald reports:
South Korea's human rights watchdog recommended Thursday that military law enforcement hand down tougher punishment for sex crimes involving commanding officers and their female subordinates, amid growing concern over a rise in sexual assault cases in the barracks.

The recommendation by the National Human Rights Commission to the Ministry of National Defense came based on its research into the military prosecution's handling of recent sexual assault cases regarding superiors and lower-level officers, the watchdog said. The survey began in May following the suicide of a Navy lieutenant who was raped by her commanding officer.

Junior officers disciplined in Uganda

Six junior officers of the Uganda People's Defence Forces have been punished for conduct to the prejudice of good order and discipline. It's another social media case, according to this Observer report:
[Unit Disciplinary Committee] prosecutor, Lt John Emmanuel Alihihi, told court that on or around November 19th to 23rd 2017, the officers, using social media, downloaded and shared a classified military document referred to as "General Administrative Order (GAO)" copy number 36 and published it amongst different social media groups. 
According to prosecution, the document which contained instructions and names of promoted officers was published by officers without proper authority and that such authority is only a preserve of the Defence spokesperson on superior orders. 
Col [TomKabuye, the chairman [Chieftaincy of Military Intelligence] disciplinary court, informed the accused that the highest punishment in an event an officer or militant, releases unauthorised information is imprisonment not less than two years and later dismissal from the defence forces with disgrace. 
All the six officers pleaded guilty to the offence and asked for forgiveness saying they did it out of ignorance and excitement over their promoted colleagues. 
Court ruled that the six be imprisoned for two months as a deterrence measure and a way of taming excitement from any other officer or militant intending to share classified information. Col Kabuye explained that the reason for giving them a lean sentence was a result of their cooperation during the trial. 
"The accused did not waste the court's time since all of them were convicted on their own plea of guilty, they were first time offenders and that the army has invested a lot of resources in their training and development therefore dismissing them at junior ranks at the peak of their productivity would be counterproductive," he stated. 
If not satisfied with the court's decision, the sentenced officers were advised to appeal in the General Court Martial within 14 days.
It seems that in Uganda promotions are classified. 

Wednesday, December 20, 2017

Request for comments on the Decaux Principles

It has been 12 years since completion of the Draft Principles on the Administration of Justice Through Military Tribunals (also known as "the Decaux Principles," after UN Special Rapporteur Prof. Emmanuel Decaux). In connection with a workshop to be held at Yale Law School with the support of the Oscar M. Ruebhausen Fund, comments are invited on whether and how the Principles can be improved or clarified.

The Principles can be found here in English. They are also available here in Arabic, Chinese, French, Russian and Spanish.

If you submit a comment, be specific and include any recommended textual changes and links to supporting materials. Comments must include your name and affiliation (for identification purposes only) and should be submitted no later than January 20, 2018.

Suit over sexual assault records

Yale Law School's website reports:
On December 13, 2017, Protect Our Defenders and the Connecticut Veterans Legal Center filed suit in U.S. District Court to compel the Department of Defense (DOD) and the Department of Homeland Security (DHS) to release records related to gender disparities within the military justice system and the military record correction boards’ handling of cases involving sexual assault and harassment. The lawsuit was filed by the Veterans Legal Services Clinic at Yale Law School. Discrimination against female service members is widespread: women are dramatically underrepresented within the military and experience disproportionate rates of sexual harassment, assault, and rape (collectively known as “military sexual trauma” or “MST”), according to the clinic.
Further details here.

Tuesday, December 19, 2017

Prosecuting a retired general -- not so easy

Dan Lamothe of the Washington Post writes here about the challenges of prosecuting old charges against a retired general officer. The charges go back as far as 1983.

Transparency watch: Jadhav Case (India v. Pakistan)

As readers of Global Military Justice Reform know, there is a pending case before the International Court of Justice between India and Pakistan, arising out of the espionage trial of an Indian national by a Pakistani military court. A death sentence has been adjudged. At issue before the ICJ is India's claim that Pakistan unlawfully denied consular access. The parties presumably also have something to say about the fairness of the military court proceedings.

Both countries have submitted their memorials to the court. One wonders why they have not been posted on the ICJ's website. This may simply be business as usual in The Hague, but the lack of transparency as to the parties' written submissions does little to contribute to public confidence in the administration of justice.

Military court data from Pakistan

This Gulf News report summarizes information provided by the military in a closed legislative session on, among other things, the work of Pakistan's military courts. Excerpt:
The military top brass said that the military courts have heard 274 cases on national security and had awarded death sentences to 161 terrorists. 
The military leadership said this while briefing the Senate Committee of the House on national security during an extraordinary in-camera session.
The military said 56 convicts had been executed in that time — 13 before the launch of Operation Radd-ul-Fasaad and 43 since the launch of the operation. The lawmakers were told that since Gen [Qamar Javed] Bajwa was appointed army chief, the military courts had received 160 cases, sources said.
Human rights jurisprudence strong disfavors the exercise of military jurisdiction over civilians. 

Alternative service in South Korea may have a new supporter in court

A nominee to the Supreme Court of South Korea has expressed support for allowing religiously-based conscientious objectors to perform alternative service. Details here.

Scottish independence and military justice

Proposals for an independent military justice system are long overdue and would secure real justice for people who have been abused and injured or killed unjustly by the armed forces – particularly young recruits.

Rory Steel, a spokesperson for Young Scots for Independence, quoted here; a December 2017 independence-oriented defense and security white paper by Garry Macdonald notes that an independent Scotland would need "[a]n independent military justice system to ensure discipline,
the legality of orders and appropriate conduct for members of
the armed forces."

A call for reform in India

Global Military Justice Reform contributor Wing Commander (Ret) U C Jha has written another powerful op-ed for Daily News & Analysis. Excerpt:
The Indian Armed Forces are following arbitrary and discriminatory systems of trial in the form of summary general court martial (SGCM) and summary court martial (SCM). The SGCM is prevalent in the Army and in the Air Force, and the SCM in the Army alone.

These systems of trial were envisaged by the British government to govern illiterate native soldiers recruited from villages. Post-mutiny, when a new Indian Army came to be organised on the ruins of the old one, it was realised that the hands of the British commanding officer (CO) would have to be strengthened if the ‘evils’ which had led to the near-disappearance of the Bengal Army were to be avoided. With this objective in mind, the SGCM/SCM was established as part of the legal machinery of the Indian Army. The British Indian Army Act of 1911 contains these provisions and continues to govern Indian soldiers.

In the SGCM, any individual subject to the Army/Air Force Act can be tried by three lay officers, who can unanimously award punishment up to death. The most senior member of the SGCM should be senior in rank to the accused, while the other officers should have one year of commissioned service. The officer convening the SGCM can do away with a formal charge sheet and the statement of offence can be made briefly to disclose an offence under the Act. In the case of the SCM, the CO alone constitutes the court and acts as judge as well as prosecutor. He can try an accused up to the rank of havildar. The proceedings are attended by two others, who may be officers or junior commissioned officers. They are not supposed to take any part in the proceedings and have no right to vote in determining either the findings or the sentence.

The accused has no right to defend himself through any military or civilian counsel. There is no need for a detailed judgement or even a discussion on the evidence. An accused cannot claim that he should be governed by the principles of natural justice which apply to a civil servant under Article 311 of the Constitution. The unbridled discretionary power of a CO to hold trial under SGCM/SCM is violative of Article 14.
Many countries retain summary trial procedures for their armed forces, but they confine their use to minor disciplinary offenses, permit only limited punishments, and provide a modicum of procedural protections. It would seem that India has some catching up to do.

Sunday, December 17, 2017

Mutiny, he wrote

The 1966 BBCtv production of Benjamin Britten's Billy Budd (based on the posthumously published novel by Herman Melville) is available here on YouTube. Not exactly holiday fare (it ends badly for the Handsome Sailor).

Explain this, please

Is there some reason the names of the trial defense counsel are replaced with initials in this November Art. 62, UCMJ decision of the U.S. Navy-Marine Corps Court of Criminal Appeals? Oh, and how come the military judge is referred to as "MJ" even though his name is given on page 1?

Not military justice, but . . .

By a 5-2 vote, the Florida Supreme Court last Thursday dismissed rule making petitions that would have permitted spouses of military personnel stationed in the state to practice law without passing the bar examination. The decision directs the Florida Bar and the Board of Bar Examiners to submit a revised joint proposal:
The Bar and the Board are directed to file a joint petition within ninety days of the date of this order that imposes additional restrictions on those requesting authorization to practice law in Florida as the spouse of a member of the United States Armed Forces. Such restrictions must include a time limit on the duration of the authorization and must require that all persons who receive authorization associate, either through participation in a law firm or through mentorship, with a member of the Bar who is eligible to practice law in Florida for the duration of the authorization.
Justice C. Alan Lawson (joined by Justice Charles T. Canady) would have approved the petitions "for the good and sufficient reason that they appropriately give form to the gratitude that we should all share for the sacrifices made each day by those serving in our Armed Forces, and by their families."

Not to detract from the spirit of the season, but if you were on a state supreme court, would you allow such an exception? Is gratitude to military personnel a cogent reason to dispense with requiring an attorney who is a military spouse to take and pass the bar examination?

Navy JAG Corps turns 50

Who knew? December 8 marked the half-century point for the U.S. Navy Judge Advocate General's Corps. Read all about it here.


Military justice changes coming in the Bay State

Governor Charlie Baker has proposed S. 2236, a bill that would establish a Massachusetts Code of Military Justice. At present the Commonwealth is one of the few states without its own military justice code. The measure has been referred to committee and can be downloaded from the General Court's website. It is described as putting the state's troops on the same footing, whether they are in federal (Title 10) or state (Title 32) status. Scott Merzbach of the Daily Hampshire Gazette has the story here. Excerpt:
Lt. Col. Shannon McLaughlin, state judge advocate for the Massachusetts National Guard, said in a phone interview Thursday that she is excited about how the changes will affect the 8,131 members in the state.

“This makes sure our operations are accurately represented by the law,” McLaughlin said.

McClaughlin said Massachusetts is one of a handful of states that doesn’t have its own uniform code governing conduct, meaning members are at risk of having military crimes prosecuted in different ways depending on whether the member is serving in a federal or state capacity.

Based on the American Bar Association’s Model State Code of Military Justice, the proposal will provide consistency and establish a series of military crimes that parallel those found in the federal Uniform Code of Military Justice. It also establishes procedures for the convening and conduct of courts-martial for specific military offenses.

“It gives our commanders ability to instill good order and discipline among the troops,” McLaughlin said.

Should a National Guard member commit a non-military crime, prosecution would still be handled in state court by a district attorney.
Proposed Article 2(b) provides:
Subject matter jurisdiction is established if a nexus exists between an offense, either military or non-military, and the state military force. Courts-martial have primary jurisdiction of military offenses as defined in article 1(a)(14) of this code. A proper civilian court has primary jurisdiction of a non-military offense when an act or omission violates both this code and local criminal law, foreign or domestic. In such a case, a court-martial may be initiated only after the civilian authority has declined to prosecute or dismissed the charge, provided jeopardy has not attached. Jurisdiction over attempted crimes, conspiracy crimes, solicitation, and accessory crimes must be determined by the underlying offense.

Saturday, December 16, 2017

No to the legalization of the militarization of Mexico

On Friday, December 15, 2017, the Mexican Congress passed a law on Internal Security that regularizes the presence of the Army and Navy in the fighting of drugs, organized crime, terrorism, corruption, money laundering, arms trafficking, etc. within Mexico.  Former President Felipe Calderon of the PAN, in 2006, was the first Mexican president to order thousands of soldiers to fight the drug cartels in Michoacán.  Since then more than 750,000 military troops have substituted for the police in hundreds of municipalities throughout the country.  The Government today is in the hands of the PRI and with support from the PAN was able to win approval for this law in the Senate and the Chamber of Deputies despite widespread protests from police experts, the media and national and international human rights organizations.  The law now awaits promulgation by President Pena Nieto.

The law appears to be an act of desperation on the part of a government with an apparently uncontrollable and escalating homicide rate.  During the first 9 months of 2017 there were 18,505 homicides, more than 68 per day, higher than the rate in 2011, when the drug war was in full swing.  Since 2006, official statistics reveal that over 200,000 people have been killed in the drug war and 31,000 have disappeared.  The police are seen as incompetent or corrupt so the government has turned to the military to solve the problem.

Critics charge that since the military was first invoked in 2006, their intervention has only served to increase the killing and abuses in the country and this law is feared as a militarization "by law" of the country, with no future plan as to how the police will be strengthened or when the military will return to their barracks.

Friday, December 15, 2017

International Society to meet in Lisbon in May 2018

The International Society for Military Law and the Law of War will hold its XIXth Congress in Lisbon. The Congress will have peace operations as its focus. The Society writes:
This Congress will be held at the Altis Grand Hotel in Lisbon (Portugal) from 15 to 18 May 2018.

The central theme is: War, Peace and the Rule of Law

Our central theme closely connects to the publication of the Society's Leuven Manual on the International Law Applicable to Peace Operations with Cambridge University Press later this month of December. The Leuven Manual reflects the current status of the law and associated best practices, and will support senior level commanders and legal advisors in planning and executing peace operations. A copy of the Leuven Manual will be given to all participants during the Congress as part of the package covered by the registration fee.
Further details will appear here in due course.

Sgt. Jenkins dead at 77

Sgt. Charles R. Jenkins
Former U.S. Army Sgt. Charles R. Jenkins, who was convicted in 2004 of desertion and aiding the enemy after crossing into North Korea in 1965, has died in Japan at age 77. His New York Times obituary refers to him as a "Cold War enigma." Excerpt:
At his court-martial, he pleaded guilty to desertion and aiding the enemy. He was demoted to private, stripped of back pay and benefits and given a 30-day jail sentence along with a dishonorable discharge.

“I was released five days early, for good behavior,” he wrote [in “The Reluctant Communist: My Desertion, Court-Martial, and Forty-Year Imprisonment in North Korea,” a 2008 autobiography co-authored by Jim Frederick].
His wife and two daughters survive him. 

Gambia court-martial continues

The treason court-martial in Gambia is ongoing, with additional reports of courtroom proceedings here and here. Three things leap out. First, the reporting is detailed, rather than generic, although there isn't any analysis. Second, the proceedings seem familiar in the sense that they broadly resemble what one would expect in a court-martial or, for that matter, a civilian criminal trial in a common law country. And third, the proceedings have been open to the media (and the media are willing to dedicate the resources). The authorities deserve credit for transparency.

Thursday, December 14, 2017

What will Pakistan do in response to UN recommendations?

Dawn reports:
The federal government asked the concerned ministries and departments to take "requisite legislative, policy and administrative measures" in accordance with the recommendations of the United Nations (UN), calling for the termination of military courts and limiting the role of the army in civil spheres, DawnNews reported on Thursday.
The UN recommendations are those set forth in the Human Rights Committee's August 23, 2017 Concluding Observations as part of Pakistan's Universal Periodic Review. The Concluding Observations stated in pertinent part:
Military courts

23. The Committee is concerned by the extension of the jurisdiction of military courts to cases transferred from the antiterrorism courts and to persons detained under the Actions (in Aid of Civil Power) Regulation. The Committee is also concerned that the courts have convicted at least 274 civilians, allegedly including children, in secret proceedings and sentenced 161 civilians to death. It is also concerned that some 90 per cent of convictions are based on confessions; that the criteria used for the selection of cases to be tried by these courts are not clear; that defendants are not given the right to appoint legal counsel of their own choosing in practice, nor an effective right of appeal to the civilian courts; and that the charges against the defendants, the nature of evidence and the written judgments explaining the reasons for conviction are not made public. The Committee is further concerned that the military courts have allegedly convicted at least five “missing persons” whose cases were being investigated by the Commission of Inquiry on Enforced Disappearances (arts. 2, 6, 7, 9, 14 and 15).

24. The State party should (a) review the legislation relating to the military courts with a view to abrogating their jurisdiction over civilians and their authority to impose the death penalty and (b) reform the military courts to bring their proceedings into full conformity with articles 14 and 15 of the [International] Covenant [on Civil and Political Rights] in order to ensure a fair trial.

Supreme Court review and typographical errors

Congress provided in 1983 for direct Supreme Court review of decisions of the [now] U.S. Court of Appeals for the Armed Forces where that court has granted a petition review. Setting aside the handful of cases that are subject to mandatory CAAF review (cases certified by the Judge Advocates General and capital cases), unless CAAF grants discretionary review, a court-martial appeal cannot be taken to the Supreme Court by petition for a writ of certiorari.

Against that backdrop, consider this December 12, 2017 order in an Army case, from CAAF's Daily Journal:
Petitions for Grant of Review - Summary Dispositions
No. 18-0042/AR. U.S. v. Michael A. Knopik. CCA 20160811. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.*
* It is directed that the decision of the United States Army Court of Criminal Appeals be corrected to reflect Appellant's middle initial as "A" vice "E."
Because the court granted review, albeit only in order to direct the lower court to correct a typographical error (wouldn't a phone call from one Clerk's Office to another have sufficed?), the entire case, including two Grostefon issues, is now eligible for Supreme Court review. Had there been no typo, it would not be.

The prosecution rests.

Death of Brigadier General James P. Cullen, 72

BG James P. Cullen, USA (Ret)
Brigadier General (Ret) James P. Cullen of the Army Judge Advocate General's Corps died last week. He is mentioned in this editorial in today's New York Times. Excerpt:
A leader of that group [of flag and general officers who publicly opposed the use of torture] was James Cullen, a retired brigadier general who had begun Army life as a private during the Vietnam War. He became a lawyer, serving for many years in the Judge Advocate General’s Corps, and later in private practice. In alliance with the human rights group, he and his once-uniformed colleagues lobbied major politicians to support a ban on coercive interrogations. General Cullen died in Scarsdale, N.Y., last week at age 72. His death is a reminder of how former military men and women of conscience and courage can provide helpful support for the civilian leadership — and, if necessary, be a bulwark against the worst instincts that at times grab hold of it.

Wednesday, December 13, 2017

More reform of New Zealand's military justice system

Click here for the text and other detail about the Military Justice Legislation Amendment Bill, which passed its first reading in New Zealand's unicameral Parliament on 7 December 2017.   The purpose of the Bill is "to update the military justice system and to align it with the criminal justice system by enhancing victims’ rights, amending the Armed Forces Discipline Act 1971, the Court Martial Act 2007, and the Court Martial Appeals Act 1953".  The parliamentary page to which I have provided a link gives you access to the Bill itself as well as YouTube videos of all the speeches in respect of the Bill, providing an interesting snapshot of varying political perspectives on military justice in New Zealand.

Any person can make a submission to Parliament's Foreign Affairs, Defence and Trade committee about this Bill.  You do not even have to be a New Zealander and it can be done on-line!

Pakistan files today with International Court of Justice

Pakistan is today filing its reply in the International Court of Justice's Jadhav Case (India v. Pakistan). According to this report in The Nation, a senior Pakistani official stated:
“We will provide evidence to the ICJ to prove his role in the killings of so many Pakistanis. His case at the ICJ should be dismissed.”

Another official said Pakistan’s response was based on the Vienna Convention and country’s ambassador in the Netherlands will submit the reply. Attorney General Ashtar Ausaf Ali is overseeing the high-profile case on behalf of Pakistan.

The official said Pakistan’s response included concrete evidence of Research and Analysis Wing agent Kulbhushan Jadhav’s confession of involvement in terror-related activities and rejection of India’s stance submitted with the ICJ.

“Pakistan’s argument is that the ICJ has no jurisdiction to hear the case of a terrorist who has orchestrated bloodshed in Pakistan. We are hopeful we will win our case,” he said.
The case may reveal details of the procedures employed by Pakistan's military courts. India's merits submission cannot be found on the ICJ's case web page. According to this report, at the Human Rights Council last month in Geneva, "India recommended that military courts in Pakistan should be barred from trying civilians and allow their monitoring by international observers and human rights organisations."