Friday, February 23, 2018

Stonewalling in Rio

Human Rights Watch has issued another timely report, this time concerning the signs of impunity in Brazil. Excerpt from the NGO's press statement:
Under international and regional norms, cases involving alleged extrajudicial executions and other grave human rights violations should not be tried before military courts. The Inter-American Court on Human Rights has ruled that “military criminal jurisdiction is not the competent jurisdiction to investigate and, if applicable, prosecute and punish those responsible for human rights violations.”

The Inter-American Commission on Human Rights has held that it is not appropriate to try violations of human rights in military jurisdictions, given that “when the State permits investigations to be conducted by the entities with possible involvement, independence and impartiality are clearly compromised.”

Thursday, February 22, 2018

Military trial for children in Somalia

Human Rights Watch has issued a report about conditions in Somalia, including the trial of dozens of boys in military courts. Excerpt:
There is no consistent government treatment of children it suspects are connected to Al-Shabab. While government officials have previously admitted to detaining boys deemed high risk, other factors, including a boy’s economic status, clan affiliation and external attention to the case, also determine their fate. Many boys are eventually released without charge, often after relatives intervene and bribe officials to ensure their release. Some children are handed over to child rehabilitation and reintegration centers run by nongovernmental organizations (NGOs), while others face trial before military courts for criminal charges of Al-Shabab membership, murder or conflict-related offenses.

Under international human rights law, governments are obligated to recognize the special situation of children who have been recruited or used in armed conflict, including children involved in terrorism-related activities, and provide assistance for their physical and psychological recovery and social reintegration. While children who were members of armed groups can be tried for serious crimes, non-judicial measures should be considered, and legal proceedings should be in accordance with international juvenile justice standards, taking into consideration the best interests of the child. Sentencing should prioritize rehabilitation and reintegration into society. The UN Committee on the Rights of the Child, which interprets the Convention on the Rights of the Child that Somalia ratified in 2015, discourages countries from bringing criminal proceedings against children within the military justice system.

While prosecutions and imprisonment of children on security charges in Somalia is not widespread, children are being tried for Al-Shabab-related crimes in military courts, largely as adults. The courts have shown no consistency on dealing with these cases, yet basic due process, including the right to present a defense and the prohibition on the use of coerced evidence, is regularly flouted.

What makes a military commission military?

Carol Rosenberg's Miami Herald article about the government's appeal of Judge Vance Spath's order abating the Nashiri military commission trial notes that the lead prosecutor for that case is on loan from his usual employment as an Assistant United States Attorney in the Eastern District of Louisiana.

As those who follow the case know, there have been several civilians on the defense side, although they have withdrawn. And until he was removed (for reasons that have still not been revealed), the convening authority, Harvey Rishikof, was (like one of his predecessors, Susan Crawford) a civilian. Being a court-martial convening authority is ordinarily an attribute of military command (the codal exceptions being the President, who is commander in chief under the Constitution, the Secretary of Defense, and the service secretaries), but in the case of the commissions convening authority, only the convening authority attribute exists and not the fact of command, akin to the smile of Lewis Carroll's Cheshire Cat.

To be sure, the presiding judge is a military officer, and the commission's members will be if and when the Nashiri case ever goes to trial, but at a certain point it seems fair to ask whether this is in substance a military institution or whether its military character has been so diluted that it is only a legal trompe l'oeil.

An unusual punishment in Bahraini military prosecutions

According to the Bahrain News Agency, the High Military Court of Appeals has issued a variety of rulings on prosecution and defense appeals in a terrorism case.

One interesting dimension of the case is that the accuseds were, as part of the sentence, deprived of their Bahraini citizenship. Australia also has citizenship-stripping legislation, but only for dual nationals. Prof. Audrey Macklin of the University of Toronto critically explored citizenship-stripping legislation in this 2014 article in the Queen's Law Journal.

Wednesday, February 21, 2018

From the New Yorker

“I’m not oblivious. I know what [wearing Class B uniforms to court] says. What little respect you have for the commission is obvious. A short-sleeve shirt, no tie, no coat; I get it. That’s the message. That’s been the message from the defense for five months.”

Military judge (Col.) Vance Spath, at a hearing in the now-abated Nashiri military commission case, as quoted by Amy Davidson Sorkin here in The New Yorker