Sunday, April 30, 2017

By the numbers

Since its launch on January 12, 2014, Global Military Justice Reform has had 3500 posts, 491 comments, and 410,177 hits from readers in 177 jurisdictions (including, most recently, St. Lucia and Togo). We currently experience over 16,000 hits per month. The roster of contributors stands at 24. Many thanks to everyone who has contributed to the blog. Keep it up and pass the word.

Promotion for long-serving chief Russian military prosecutor

Col. Gen. Sergey N. Fridinsky
According to this Crime Russia report, Col. Gen. of Justice Sergey N. Fridinsky, who recently resigned as Russia's chief military prosecutor after an astounding 11 years in the position, may be in line to become Deputy Minister of Justice. More information can be found here.

Marine A, The Movie

Now that Royal Marine Sgt. Alexander Blackman, who was convicted of diminished responsibility manslaughter for killing a wounded insurgent in Afghanistan, has been released from prison, will there be a movie? According to The Guardian, his attorney, Jonathan Goldberg QC, has been in California meeting with a producer. A documentarian who is close to the family suggests, however, that it's "fanciful" to think about a Hollywood blockbuster.

Saturday, April 29, 2017

Canadian Armed Forces discharge 77 for sexual misconduct

The Globe & Mail reports:
The Canadian Armed Forces are acting on their threat to fire anyone involved in serious sexual misconduct, announcing they are releasing 77 members as part of efforts to root out inappropriate behaviour in their ranks. 
The new figure was unveiled on Friday in the latest progress report on Operation Honour, which is designed to put an end to sexual wrongdoing in the military. The initiative has recently grown to include efforts to reduce the number of criminal investigations of sexual assault cases in the forces that are closed after being classified as unfounded. 
As part of the report, the CAF said the number of unfounded cases in 2016-2017 is down to 7.3 per cent of complaints. By contrast, the unfounded rate in the 2010-2015 period was nearly 29 per cent.
The Operation Honour progress report on inappropriate sexual behavior for the period from July 2016 to March 2017 was issued on April 28, 2017 and can be found here.  

An echo of the Jadhav case in SCI

The case of Kulbhushan Jadhav (who is under a death sentence from a Pakistani military court) seemed close to the surface in a hearing yesterday before a 2-judge bench of the Supreme Court of India, according to this Press Trust of India account. The court was hearing a case seeking the release of Pakistani citizens who have completed their jail terms in India. The judges said that India repatriates such persons even in the absence of reciprocity.

Child defendants in Lebanon's military courts

Human Rights Watch has submitted an updated report on the trial of children by Lebanon's military courts to the Committee on the Rights of the Child. HRW wrote:
We encourage the Committee to make the following recommendations to the Lebanese government: 
  • Remove all children from the jurisdiction of the military courts;
  • Amend article 401 of the Penal Code to criminalize all forms of torture and ill-treatment; 
  • Investigate and appropriately prosecute allegation of torture and ill-treatment of children; 
  • Allow juvenile representatives to attend all preliminary interrogations of children and amend article 49 of the Code of Criminal Procedure to guarantee suspects the right to a lawyer during interrogation;
  • Ensure that children enjoy full due process guarantees, including access to counsel, the right to challenge their confinement, contact with their families, and separation from adult detainees;
  • Allow independent humanitarian agencies, including UNICEF, unrestricted access to all children in all detention facilities;
  • Ensure that children are detained only as a measure of last resort and for the shortest appropriate period of time;
  • Ensure that any punishment for criminal offenses be appropriate to their age, and be aimed at their rehabilitation and reintegration into society.
HRW's earlier report on the trial of civilians by Lebanon's military courts -- "It's Not the Right Place for Us" -- can be found here. It was issued on January 26, 2017.

Friday, April 28, 2017

Should there be constitutional limits on military's power to try civilians, particularly in peacetime?

BEHIND THE TIMES
The Canadian Military Criminal Justice
System is in serious need of reform
Retired Army Captain Simon Duvall, formerly stationed at Canadian Forces Base Esquimalt in British Columbia, has been charged under section 271 of the Criminal Code of Canada with sexual assault. The assault is alleged to have taken place between December 2010 and January 2011 at Base Gagetown, New Brunswick. Subsection 69(1) of the National Defence Act stipulates that a person is liable to be tried by a military tribunal, even in retirement, if at the time the alleged commission of the offence took place he or she was subject to the Code of Service Discipline.

Civil parties seek to join Cameroon court-martial

Civil parties have asked to join the court-martial of three Anglophone civilians in Cameroon, according to this Radio France Internationale account. Excerpt:
The defence was "ambushed" during Thursday afternoon's hearing, said lawyer Manyi Becky Orock. Three lawyers representing civil parties came before the military tribunal in Yaoundé claiming damages against the accused. 
"They're talking about someone who was wounded," said Orock. "Who is that person, who are those who are trying to complain that they have suffered injury during this Anglophone crisis?" she added. 
The defence objected to the civil parties being brought before the court. Orock said lawyers for the accused argued that the court should have been provided with a letter from the head of the Cameroon Bar Association in order to follow proper legal procedure before lawyers for civil parties could appear in court. Furthermore, it was not clear who the civil parties are, according to Orock.
"They cannot be representing people that we have not seen before the court, there were no civil parties before the court, how could they say they were representing the civil parties," the lawyer said.

Thursday, April 27, 2017

Who can appeal Jadhav's military court conviction?

Dawn reports that Indian authorities have transmitted an appeal by Kulbhushan Jadhav's mother. Excerpt:
His mother’s appeal for the appellate court may not be the right way to proceed because under the military’s legal system, the convict has to do it himself and is issued a document for filing appeal at the time of his sentencing.

“It is a violation of the Army Act,” military law expert retired Col Inam-ur-Raheem said, adding that in military the appeal process had to be initiated by the convict, possibly with the help of a counsel.

However, he noted that in the civilian judicial process, appeals could be filed by someone related to the convict. Petitions against decisions by military courts trying civilians accused of terrorism, he recalled, were filed by the parents of the convicts.
It is difficult to understand why Jadhav would not have submitted an appeal of his own -- or why his attorney (if he had one) would not have done so. 

Five freed (out of 11) on Uganda court-martial appeal

On evidentiary grounds, the Uganda Court Martial Court of Appeal has overturned the convictions of 5 out of 11 civilians who were tried on weapons charges in 2015. The other 6 will serve out their 25-year sentences. Details can be found here. The Court of Appeal rejected all of the appellants' argument that they were not subject to trial by court-martial.
Mr [Elly] Turyamubona [who chaired the three-member appellate court] ruled that Section 119(1) of the UPDF Act provides that a person can be tried in the court martial on accusations of using guns of which the army has monopoly to control. 
"Possession of fire arms was proved by the prosecution witnesses therefore court had jurisdiction to try the appellants," court ruled. 
Court records show that the eleven were among the 57 people who were arrested for attacking policemen guarding a weigh bridge along Kasese-Mbarara High way in Kasese District in July 2014. 
Court heard that during the attack the group was armed with spears and machetes among weapons.
The use of military courts to try civilians is strongly disfavored by human rights standards and forbidden outright by the African Charter on Human and Peoples' Rights. 

Legal context of the Jadhav case

Wg Cdr (Dr) U C Jha has kindly provided the following report on the legal framework of the Kulbhushan Jadhav military court controversy between Pakistan and India:

It has been reported in The Hindu newspaper of today that Jadhav's mother has submitted an appeal. The punishment awarded by the Field General Court Martial (FGCM) to Jadhav was confirmed by the Pakistan Army Chief. The Appeal Court would consist of three members: the Army Chief, another officer, and a judge advocate appointed by him for this purpose. The Appeal Court under section 133B of the Pakistan Army Act has the power to: (a) accept or reject the appeal in whole or in part; (b) substitute a valid finding or sentence for an invalid finding or sentence; (c) call any witness, in its discretion for the purpose of recording additional evidence in the presence of the parties, who shall be afforded an opportunity to put any question to the witnesses; (d) annul the proceedings of the Court Martial on the ground that they are illegal or unjust; (e) order retrial of the accused by a fresh court; or (f) remit the whole or any part of sentence or reduce or enhance the same. The decision of Court of Appeal, as provided in subsection 133B(3), shall be final and cannot be called in question before any court or any other authority whatsoever. The Supreme Court can interfere in the case only if the military court has acted without jurisdiction and coram non judice.

Section 133-B reads as under Court of Appeals for other cases:
(1) Any person to whom a court martial has awarded a sentence of death, imprisonment for life, imprisonment exceeding three months, or dismissal from the service after the commencement of the Pakistan Army (Amendment) Act, 1992, may, within 40 days from the date of announcement of finding or sentence or promulgation thereof, whichever is earlier, prefer an appeal against the finding or sentence to a Court of Appeals consisting of the Chief of the Army Staff or one or more officers designated by him in this behalf, presided by an officer not below the rank of Brigadier in the case of General Court Martial or Field General Court Martial or District Court Martial or Summary Court Martial convened or confirmed or counter signed by an officer of the rank of Brigadier or below as the case may be, and one or more officers, presided by an officer not below the rank of Major General in other cases, hereinafter referred to as the Court of Appeals; 
Provided that where the sentence is awarded by the court martial under an Islamic law, the officer or officers so designated shall be Muslims;
Provided further that every Court of Appeals may be attended by a judge advocate who shall be an officer belonging to the Judge Advocate General’s Department, Pakistan Army, or if no such officer is available, a person appointed by the Chief of the Army Staff. 
(2) A Court of Appeals shall have power to – (a) accept or reject the appeal in whole or in part; or (b) substitute a valid finding or sentence for an invalid finding or sentence; or (c) call any witness, in its discretion for the purpose of recording additional evidence in the presence of the parties, who shall be afforded an opportunity to put any question to the witness; or (d) annul the proceedings of the court martial on the ground that they are illegal or unjust; or (e) order retrial of the accused by a fresh court; or (f) remit the whole or any part of the punishment or reduce or enhance the punishment or commute the punishment for any less punishment or punishments mentioned in this Act. 
(3) The decision of Court of Appeals shall be final and shall not be called in question before any court or other authority whatsoever.
Editor's comment: It cannot be seriously contended that the Army Court of Appeals is independent, given the role of the Chief of Army Staff in both reviewing court-martial results and either serving on or designating a member of the Court of Appeals. This means that review by the Supreme Court of Pakistan will be the first proper judicial scrutiny of the Jadhav case (and any other case tried under the Army Act, whether involving military personnel or civilians). Because the Supreme Court's review is, as Wg Cdr Jha notes, narrowly constrained, it falls far short of the kind of meaningful civilian appellate review to which all criminal defendants are entitled as a matter of human rights.

Wednesday, April 26, 2017

Mounties affidavit

A redacted affidavit used to obtain a Search Warrant filed in court by the Royal Canadian Mounted Police (RCMP) against Vice Admiral Mark Norman was previously released on April 16, 2017. The search warrant had shown that the then Vice Chief of the Defence Staff had been under RCMP covert surveillance for months prior to his suspension in January 2017. A fuller version of the same affidavit was released earlier this date under court order. The search warrant chronicles the plan to lease a supply ship for the Royal Canadian Navy which was conducted quite outside the regular official procurement framework. Meanwhile, the Globe and Mail, Canada's newspaper, confirms that the RCMP has alleged that VAdm Norman has divulged cabinet secrets to an executive with a Quebec-based shipyard advising him to use the media to pressure the 'Liberals' into approving a $667-million naval supply ship contract.  The Globe and Mail provides a significant number of highlights from the RCMP affidavit.

ROK Army crackdown on gays

The New York Times reports here on the South Korean Army's crackdown on gays in the military. Excerpt:
“Our military remains stuck in a barbarian and medieval culture,” said Lim Tae-hoon, director of the Military Human Rights Center. “The investigators preyed upon gay soldiers’ vulnerability like a cat playing with a mouse.” 
*   *   * 
But in the past week, evidence has emerged to support the allegations by gay soldiers that investigators flouted the army’s own regulations on how to treat gay service members by preying upon the soldiers’ fear of shame and abuse if they are outed in the military. Analysts and veterans said bullying, hazing and sexual violence were chronic problems.

Lieber Code anniversary

Prof. Francis Lieber
History Today reminds us:
The Union Army issues General Orders No. 100, which provided a code of conduct for Federal soldiers and officers when dealing with Confederate prisoners and civilians. The code was borrowed by many European nations, and its influence can be seen on the Geneva Conventions.
The orders were the brainchild of Francis Lieber, a Prussian immigrant whose three sons had served during the Civil War. One son was mortally wounded while fighting for the Confederacy at the Battle of Williamsburg, Virginia, in 1862. Lieber’s other two sons fought for the Union. Lieber was a scholar of international law who took a keen interest in the treatment of combatants and civilians. He wrote many essays and newspaper articles on the subject early in the war, and he advised General Henry Halleck, general-in-chief of the Union armies, on how to treat guerilla fighters captured by Federal forces.
My reminder, and recommendation is John Fabian Witt's excellent book, Lincoln's Code. And you can see more here.

Un sérieux manque de considération à l'égard de l'institution de la justice militaire et de ses juges

The text which follows highlights lacunae in the process of a recent appointment of a military judge to the court martial of Canada. The newly appointed judge learned of her appointment on Facebook!

Un poste de juge militaire étant vacant, un certain nombre de personnes, dont celle qui fut ultimement choisie, déposèrent leurs candidatures pour l’obtention du poste. Selon un processus digne et respectueux de la séparation des pouvoirs exécutif, législatif et judiciaire, le ministre de la Justice ou , selon le cas, de la Défense appelle l”heureux ou l’heureuse élue pour le ou la féliciter, le ou la remercier de vouloir assumer cette fonction exigeante et leur offrir ses meilleurs voeux de succès dans le choix de cette nouvelle carrière. Mais ce n’est pas ce qui s’est passé dans le cas de la juge récemment nommée.

En effet, autant la nouvelle juge que le juge militaire en chef ont eu droit à une surprise de taille. D’abord le juge militaire en chef ignorait qu’un juge militaire avait été nommé depuis environ deux semaines lorsqu’il l’a appris. D’autant plus facile pour lui d’ignorer ce fait qu’il n’a en aucun temps été consulté surle choix de la nouvelle nomination. La connaissait-il? L’avait-il déjà vue à l’oeuvre? Avait-elle déjà plaidé devant les instances judiciaires militaires? Quelle était son expérience au niveau juridique? Etc. Autant pour le juge militaire en chef de questions pertinentes avant sa nomination.

Mais là ne s’arrête pas la surprise. Oh non! C’est sur Facebook que la nouvelle élue à la fonction judiciaire a appris sa nomination au sein de la justice militaire! Eh oui sur Facebook! Quelqu’un l’a su bien avant elle et a posté l’information sur Facebook. Quel impair de la part des Hautes Instances du Gouvernement!


Le minimum que devait faire le Gouvernement dans les circonstances, c’était de demander à son ministre responsable de contacter la juge et le juge militaire en chef pour leur offrir ses plus sincères excuses pour les ratés du système. Le juge militaire en chef n’a pas eu droit à cet appel et, pour sa part, la juge nouvellement nommée n’a eu seulement droit qu’aux excuses du Chef de cabinet du ministre de la Défense!

Tuesday, April 25, 2017

Judicial independence in Cameroon

Here's a sentence that causes the reader to pause:
On Monday, Judge Edou Mewoutou arrived at the sentencing hearing nine hours late. He did not give a reason for the delay.
 For more on the case click here.

The Jadhav dilemma

Dawn has published this op-ed by former caretaker law minister Ahmer Bilal Soofi summarizing Pakistani law as it applies to the case of an Indian citizen who has been sentenced to death by a Pakistani military court. It is important reading. Excerpt:
There are two avenues available to Kulbhushan Jadhav and India if they want to challenge his conviction. One, Jadhav himself may file a writ petition for which he would need to obtain a no-objection certificate from the federal government as per the requirement of Section 83 of the Code of Civil Procedure, 1908 (CPC). The second option is that the Indian state itself may invoke Section 84 CPC and appear before the courts of Pakistan as a petitioner.

Section 83 CPC bars alien enemies residing in Pakistan from suing in the courts without the permission of the federal government. The statutory explanation of Section 83 deems an alien enemy as any person whose country is at war with or engaged in military operations against Pakistan. 
The above law is a statutory formulation of a well-recognised public policy doctrine that a state’s judicial apparatus shall not facilitate the enemy and neither will a state make available its remedies to the enemy. This public policy doctrine has been enshrined in the civil procedure codes of India, Bangladesh and Pakistan. 
The Supreme Court of Pakistan in its judgement (PLD 1969 SC 37) has explicitly stated that Section 83 was a complete bar for an enemy alien.
*   *   * 
Thus, the federal government while examining a request by Jadhav under Section 83 CPC will need to come to a conclusion about whether Jadhav’s activities are to be viewed as an act of waging a covert war on the part of the Indian state. For that purpose, it will be guided by the language of sections 121, 121-A and 122 of the Pakistan Penal Code that sum up the concept of waging war, or its attempt or its conspiracy within the territories of Pakistan. An identical provision in the Indian Penal Code has been widely interpreted by several reported cases of the Indian Supreme Court. 
As mentioned here, the state of India may also consider filing the case itself on behalf of Jadhav before the Pakistani courts under Section 84 of the CPC, since its foreign minister has conclusively owned Jadhav as the “son of India” in her address before India’s lower house, the Lok Sabha. The said section authorises foreign states to become petitioners before local courts in the following words: 
“84(1) A foreign state may sue in any court … Provided, that the object of the suit is to enforce a private right vested in the head of such state or in any officer of such state in his public capacity.” 
 *   *   *
The federal government can only grant permission to Jadhav under Section 83 CPC if there is evidence to suggest that covert hostilities have ceased. There has been no statement or any other indication from the government of India to suggest that they regret the unlawful activities of Jadhav or that they will discontinue from carrying out such activities in the future. There is no offer even to adhere to the principle of non-intervention.
In the absence of any such statement or undertaking by India, the federal government will have no choice except to make an executive determination that India is not discontinuing its efforts of waging war inside Pakistan.
Given Mr Soofi's summary of Pakistani law, one must infer that unless peace were to suddenly break out, the only way out of the current predicament is a political arrangement between the two countries, such as a prisoner exchange, rather than legal proceedings. The recent hangings of Pakistani citizens who were condemned by military courts adds to the urgency of the two states' interactions. 

Cameroon military court hands journalist a 10-year sentence

Amnesty International reports that a Cameroonian military court has handed down a 10-year sentence And $90,000 fine to Ahmed Abba, a Radio France International journalist. "Amnesty International considers that Ahmed Abba’s trial was marred by irregularities, including witnesses not being called to testify and key documents not being shared with defence lawyers." He was convicted of "non-denunciation of terrorism" and "laundering of the proceeds of terrorist acts” but acquitted of "glorifying acts of terrorism."

Monday, April 24, 2017

La croissance surprenante du bureau du Juge-Avocat Général

This text points to the surprising growth of the office of the Judge-Advocate General. It shows an increase of 256% of its legal staff since 1997 while the number of military members of the regular force has decreased from 70,000 in 1997 to 65,000 in 2017.

La croissance surprenante du bureau du Juge-Avocat Général nous rappelle cette fable de Jean de Lafontaine intitulée "La grenouille qui veut se faire aussi grosse que le boeuf".

Ayant vu un boeuf de belle taille, la grenouille qui n'était pas grosse en tout comme un boeuf décida d'égaler le boeuf en grosseur, De dire l'illustre fabuliste, "La chétive Pécore s'enfla si bien qu'elle creva". Je ne crois pas que ce soit là le destin du bureau du JAG mais, ceci dit, un régime minceur paraît s'imposer dans les circonstances. Voyons les chiffres actuels selon les données que j'ai reçues.

De 1997 à 2017 les effectifs juridiques du bureau du JAG se sont ainsi accrus:

Rangs, avocats militaires de la Force régulière:

                                   1997                     2003                   2013                  2017

Major-général                                                                        1                        1

Brigadier-général           1                           1

Colonel                          6                           8                         10                      8

Lt-Colonel                     23                         27                       32                      28

Major                             41                         49                       102                    108

Capitaine                       10                         40                        23                      62

Total:                             81                         125                      168                    207

En 1997, la Force régulière comptait 70,000 effectifs. En 2017 elle n'en compte plus que 65,000. De 1997 à 2017, l'augmentation des effectifs juridiques du JAG est de l'ordre de 256%.

En prenant ces chiffres, cela signifie que le bureau du JAG compte une ratio d'un avocat par groupe de 314 militaires alors que la ratio civile à l'échelle canadienne est d'un avocat par groupe de 454 citoyens. Si les effectifs des Forces canadiennes de 1997 avaient connu une augmentation du même ordre que celle du bureau du JAG, celles-ci disposeraient en 2017 d'une armée de 180,200 membres alors que, tel que ci-haut mentionné, elle n'en compte que 65,000.

Dans un tel contexte le taux d'accroissement des effectifs juridiques se veut pour le moins surprenant.

Alleged abuse, humiliation occurred at Canadian Forces bases

On April 24, 2016 CBC News reports that alleged abuse of Canadian soldiers at the hands of their own military during training exercises was widespread in the 80’s and 90s. 

This report followed a more detailed report by CBC News broadcasted on The National on April 10, 2017 that alleged torture by a dozen of ex-soldiers took place in 1984 at Camp Wainwright, Alberta.   

The Chief of the Defence Staff, General Jon Vance, has yet to respond to these allegations. Meanwhile, the Executive Director of the Canadian Centre for Victims of Torture, calls what happened to the soldiers “an embarrassment to Canadians.”

Operational Mishaps

The Editor's U.S. Military Justice and "Operational Mishaps": A Primer can be found here on the Just Security blog.

Not directly about military justice, but . . .

Luis Gómez Romero has a timely and informative essay on The Conversation about whether the Mexican armed forces should continue to be used as a police force. Excerpt:
In December 2016 Salvador Cienfuegos Zepeda, Mexico’s minister of defence, declared that fighting the war against drugs has “denaturalised” the Mexican military. Soldiers, he said, are not trained “to chase criminals”. 
If 52,000 soldiers are going to be deployed on a daily basis, he argued in a December 2016 article in the newspaper El Universal, they need clear rules to operate within a human rights frame. 
Cienfuegos demanded a law that would establish a finer legal distinction between public security (the purview of the police) and internal security (specific threats requiring military intervention). 
That (seemingly reasonable) request spurred today’s Congressional debate on internal security. Each of Mexico’s three main parties has presented its own bill. There’s the PRI’s, put forward by César Camacho Quiroz and Sofía Tamayo Morales; the PAN’s, stewarded by Senator Roberto Gil Zuarth; and the Revolutionary Democratic Party’s (PRD), tabled by Senator Luis Miguel Barbosa Huerta
It’s unclear exactly what kind of “certainty” these proposals might bring. There are differences between them, but all evoke déjà vu because they refer to organised crime as a potential threat to internal security and justify involving the army by pointing to the incapacity or corruption of local police.

Sunday, April 23, 2017

Human shields -- another view

Global Military Justice Reform contributor retired Wing Cdr. U.C. Jha has written this op-ed on the human-shield case currently in the spotlight in India. Comments welcome (but you must use your real name).

Saturday, April 22, 2017

A tweet too far for AFT judge?

What's in a tweet? A non lawyer member of the Armed Forces Tribunal of India is in hot water over just that question. According to this article from The Wire:
Air Marshal (Retd) Anil Chopra is a member of the Armed Forces Tribunal, where courts martial are appealed. But his tweets raise questions about his impartiality.
Air Marshal Anil Chopra (L) tweeted that any "self respecting nation would have shot 100 stone pelters by now". Credit: Twitter/PTI
Air Marshal Anil Chopra (L) tweeted that any “self respecting nation would have shot 100 stone pelters by now”. Credit: Twitter/PTI 
New Delhi: It took only 140 characters for Air Marshal (Retd.) Anil Chopra, who is a serving member of the Lucknow bench of the Armed Forces Tribunal (AFT) to raise questions about the impartiality of the legal mechanism that is meant to handle appeals in cases involving crimes and misdemeanours by soldiers and officers of the Indian army.  
On April 12, soon after a video showing Kashmiri protestors heckling security forces on election duty started circulating on social media, Chopra – a highly decorated retired air force officer – took to Twitter to advocate that a hundred “stone-pelters” in Kashmir be shot. 
Chopra Tweet
While the Kashmir conflict has been a polarising issue on social media, this is the first time a serving judge or judicial official has bluntly spoken out in favour of actions whose legality is not only questionable but which may one day end up in a court room that he presides over. 
The Armed Forces Tribunal (AFT) is not just the primary internal dispute resolution body of the armed forces but is also the forum where courts martial appeals end up. It has several benches across the county, Chopra serves on the Lucknow bench. 
After facing severe criticism and perhaps realising the legal implications of what he had advocated, Chopra deleted his tweet. 
However, he did not stop at this. Two days later, when the army was facing widespread criticism over the decision of an officer to use a Kashmiri man, Farooq Ahmad Dar, as a human shield to deter or prevent stone pelting or perhaps simply as a warning to Kashmiri civilians, Chopra applauded this drastic and illegal move as an “innovative idea”. He also said he admired the Indian government’s decision to support the major who came up with this idea. . . .

Military Advocate General in the news

Brig. Gen. Sharon Afek
Military Advocate General
The Jerusalem Post has this lengthy profile of Brig. Gen. Sharon Afek, calling him a quiet transformer. Excerpt:
[H]e may be the most formidable military advocate-general in a long time, and the one most ready to address Israel’s international law challenges, having served as deputy military advocate-general and in top positions in the international law, Judea and Samaria, and air force departments. (Usually, the military advocate-general is expected to come from the prosecution or defense divisions, with no special international law background.) Despite his low-key public demeanor, no IDF staff member would ever submit himself to his incisive and quick questioning without being thoroughly prepared. 
But his legacy internationally and nationally will likely be determined by his fateful decisions in the Hebron shooter case, on war crimes probes before the ICC prosecutor, on the rape case against storied former general Ofek Buchris and key appointments like that of the first-ever Druse-Israeli Judea and Samaria chief prosecutor, Lt.-Col. Asem Hamed
Afek’s decision to indict Hebron shooter Elor Azaria for manslaughter, not the harsher murder charge and not the more lenient negligent homicide charge, has been his biggest decision to date.

Military judge to head National Judicial College

Captain Benes Z. Aldana, USCG
Captain Benes Z. Aldana, chief trial judge of the U.S. Coast Guard, has been named next president of the National Judicial College. Details here. Congratulations!

Two months arrest for denouncing corruption

CURIAThe Military Chamber of the Spanish Supreme Court admitted the appeal (cassation) of the military disciplinary proceedings presented by former Army Lieutenant Luis Gonzalo Segura against the judgment of the Central Military Tribunal of October 26, 2016.  The Court in the 2016 decision rejected the complaint filed by the former Lieutenant against the resolution of the Minister of Defense of October 29, 2014, confirming on appeal the agreement of the general chief of staff of the Army of July 16, 2014 by which two disciplinary sanctions were imposed on the former Lieutenant.

The first consisted in two months arrest for being the author of a serious offense consisting in “manifestations against discipline (…) or carrying them out through the communications media.” This was as a result of an interview he gave on a prime time program to Jose Miguel Monzon, while wearing his uniform.

The second consisted in his loss of a new posting for being the author of another serious offense consisting of “emitting (…) contrary expressions, carrying out disrespectful acts or adopting an attitude of disdain to (…) institutions or powers or persons or authorities that constitute (…) the Armed Forces and the Bodies that comprise it and other institutions or Bodies of a military nature; as well as the military authorities, when they do not constitute a more serious crime or felony.”

According to the Supreme Court, this could have been a violation of the right to due process (art 24.2 of the Constitution) and the principle “non bis in idem” (double jeopardy) for the double disciplinary sanction for the same acts, as well as an eventual violation of the right to the presumption of innocence.

The Supreme Court, however, has not pronounced itself on the pre-judicial question presented by the lawyers representing Luis Segura, in which they request, by means of the Supreme Court, that the European Court of Justice give an opinion as to whether the disciplinary measures imposed on a member of the military for denouncing publicly corruption is incompatible with Directive 2000/78/CE of the Council, of November 27, 2000.   

The Military Chamber of the Supreme Court is the highest level of Spanish justice that can resolve this question or transfer it to the European Court of Justice.  In either case, it cannot remain silent in the face of this question, it is obliged to pronounce itself, stated Segura’s lawyer.  Since the Central Military Tribunal is comprised of three persons -- two lawyers and one who is not a lawyer -- it is not independent; consequently, either the Supreme Court or the European Court of Justice should decide the case, he added.

ROK crackdown on gay sex in the army

The South Korean Army seems to be cracking down on gay sex, judging by this article. The campaign includes the use of social media to secure evidence. Excerpt:
Growing evidence of an alleged investigation into homosexual acts in the South Korean army including images of conversations on gay dating app Jack’d between service members and secret service agents is causing an uproar, with some human rights groups calling for the army general accused of giving the order to track down gay soldiers to step down. 
Captured images of conversations on the dating app show one user opening up a dialogue in an ordinary manner, which then leads to a series of questions in an attempt to identify and track down the other party involved. 
In an audio file of a conversation recorded during an interrogation, investigators were heard verbally threatening the accused soldier, asking personal questions such as “what would your parents think if they found out?” 
One lieutenant whose name is being withheld was charged earlier this week with breaching the country’s military laws, after a video surfaced on social media allegedly depicting him engaged in sexual intercourse with another man.

Friday, April 21, 2017

Italian army officers on trial

ANSA reports that:

A Rome military judge on Thursday sent five Italian army officers to trial June 12 for alleged fraud in allegedly ordering lighter and cheaper armour for vehicles in Afghanistan. A sixth man, an army colonel, hanged himself on April 6.

A challenge for Egypt's military justice system

This morning's New York Times has this article about the emergence of a disturbing video of Egyptian soldiers shooting unarmed men in the Sinai Peninsula. The question is whether this will go down as merely an instance of impunity or spark serious military justice proceedings. It already stands as yet another milestone in the growing series of incidents in which criminal conduct by military personnel of various countries (the Blackman case in the UK, the U.S.'s urinating marines immediately come to mind) has become widely known because of video technology available on inexpensive and ubiquitous bodycams and smartphones.

Military court convicts Cameroonian journalist

A military court in Cameroon has convicted Ahmed Abba, a reporter for Radio France International, on charges of "non-denunciation of terrorism" and "laundering of the proceeds of terrorist acts." The conviction will be appealed. The Committee to Protect Journalists has protested. Details here.

What does Chinese civil-military integration mean for the courts?

The press outside of China has recently focused on China's civil-military integration. An article in the April 20 edition of Hong Kong's South China Morning Post (SCMP) had the following comments. (More serious -- and eminently readable -- analysis of the program can be found here):

China’s military further opened its research and development programmes to private companies, inviting them to take part in projects worth an estimated 6 billion yuan (US$870 million or HK$6.78 billion), state media reported.....This past January, he [Xi Jinping] authorised the creation of the Central Commission for Integrated Military and Civilian Development to coordinate policies and decisions towards that end.But obstacles remain, with a major one being trust, according to He Qisong, a defence policy specialist at the Shanghai University of Political Science and Law... “When it comes to key technologies in the defence industry, private companies can hardly gain any trust from the army in matters involving secrecy,” He said. Retired PLA major general Xu Guangyu said new laws were needed to clarify obligations of businesses handling classified work, as well as to define the commercial benefits they could reap from cooperation with the military.

But it appears neither the analysts the SCMP contacted nor the newspaper itself did any further homework. If they had, they would have uncovered an April 11 article on one of the People's Liberation Army websites, that republished an article from a Wechat public account. For those not familiar with China, Wechat is the most popular social media platform, that permits blog-like writing in what are called public accounts. The article, titled "Civil-Military Integration is Inadequate and What do You Know About the Countermeasures," drills down on the underlying legal problems. The author has a Ph.D. in law and formerly taught at the National University of Defense Technology in Changsha. The author illustrates the difficulties of implementing high level reform in China when the underlying legal infrastructure is unchanged. The article points to underlying issues that I have previously discussed on this blog. Those include:
  1. gaping holes in the legislative framework; 
  2. when legislation exists, it conflicts with other legislation; 
  3. lack of effective dispute resolution.
 On the substantive law issues:
There is a bias and even conflict between existing military regulations and national laws and regulations. Some military legislation sets up a self-enclosed, self-contained system which does not coordinate with or supplement the Contract Law, Arbitration Law, Government Procurement Law, Product Quality Law and "business scope registration management regulations" and other relevant laws and regulations. For example, the "Provisional Regulations of the People's Republic of China Private Enterprise" "Individual-owned Enterprise Law" "Partnership Enterprise Law" "Company Law" etc. clearly stipulate that enterprises must not engage in military industry....Concerning civil-military integration, there are many "red head documents," [official Party/government /military documents], but those policy documents cannot play the role of broad, long-term, stable, and highly efficient legal norms. There are few legal norms, primarily administrative regulations and departmental rules, with a relatively low legal status, in-effective, poorly coordinated, weak binding effect, and are not fit for the needs of the further development of civil-military integration.  At the same time, many regulations and documents promoting civil-military integration have a relatively highly classified, making it difficult to make them public, but not helpful for entities to participate in national defense and military matters, difficult to effectively protect one's rights, but making it hard for these regulations to be actually implemented.  
Dispute resolution:
Currently, there are situations involving the procedure for the resolution of military-related civil disputes in which the military courts cannot accept the cases, nor can the local [civilian] courts or arbitration institutions. According to the relevant judicial interpretation of the Supreme People's Court in 2012 [previously mentioned on this blog], the military court only has jurisdiction over four types of civil disputes, and does not hear civil disputes related to civil-military integration. In addition, the local courts or arbitration institutions face the problem in trying or arbitrating civil disputes that the military has defense judicial immunity, so even after the trial or arbitration, the decision or arbitral award cannot be enforced. As a result, local courts and arbitration institutions do not want to accept civil-military civil disputes. At present, civil-military disputes, including civil-military integration are basically resolved through mediation or conciliation, but the civil-military civil disputes in the development of military integration are complex and varied, and take diverse forms. If the dispute cannot be resolved through legal proceedings, and cannot achieve the goal of fair, just and efficient [dispute resolution], it fails to meet the demands of a law-based economy based on the market economy.
So, although the grand policy has been announced and publicized, on the ground implementation appears to another story.  The silos between the military and civilian economy continue to exist. What business will voluntarily do a deal if no court or arbitration institution can hear a dispute if the deal goes bad?

Thursday, April 20, 2017

Doublethink in Pakistan

The debate on whether or not the military courts should exist is no longer relevant after the two-year extension.*

The military courts were founded on the principles of safeguarding the judiciary alongside a means to deliver quick and efficient justice.**

From this editorial in The Nation (footnotes and emphases added)

* No longer relevant? All debate must end when the Constitution has been amended?

** "We had to destroy the village in order to save it."

Navy Regs and revenge porn

Task & Purpose reports that the Secretary of the Navy has issued an interim change to the mother of all regulations, U.S. Navy Regulations, 1990, to address the "Marines United" revenge porn problem:

UNCLASSIFIED
ROUTINE
R 181436Z APR 17
FM SECNAV WASHINGTON DC
TO ALNAV
INFO SECNAV WASHINGTON DC
CNO WASHINGTON DC
CMC WASHINGTON DC
BT
UNCLAS

ALNAV 021/17

MSGID/GENADMIN/SECNAV WASHINGTON DC/-/APR//

SUBJ/U.S. NAVY REGULATIONS, 1990 INTERIM CHANGE//

REF/A/DOC/SECNAV/16SEP90//
NARR/REF A IS THE U.S. NAVY REGULATIONS.//
POC/W. RECORD/CAPT/JAGC/USN/OJAG (CODE 20)/-/LOC: 1254 CHARLES MORRIS
STREET, SE, WASHINGTON NAVY YARD, DC/-/EMAIL:  WARREN.RECORD
@NAVY.MIL/-/TEL:  (202) 685-7057, DSN 325-7057//
W. PIGOTT/COL/USMC/JAD/-/LOC:  3000 MARINE CORPS PENTAGON, RM 4D557,
WASHINGTON DC/-/EMAIL:  WILLIAM.N.PIGOTT@USMC.MIL/-/TEL:  (703) 693-9304, DSN 
223-9304//

RMKS/1.  Pending formal amendment to reference (a), this interim change adds 
a new article, Article 1168 to reference (a).  This interim change is 
effective upon the release of this ALNAV.

2.  Article 1168 of reference (a) is added to read as follows:
    a.  1168.  Nonconsensual distribution or broadcasting of an image
        (1) The wrongful distribution or broadcasting of an intimate image is 
prohibited.
        (2) The distribution or broadcasting is wrongful if the person making 
the distribution or broadcast does so without legal justification or excuse, 
knows or reasonably should know that the depicted person did not consent to 
the disclosure, and the intimate image is distributed or broadcast:
            (a) With the intent to realize personal gain;
            (b) With the intent to humiliate, harm, harass, intimidate, 
threaten, or coerce the depicted person; or
            (c) With reckless disregard as to whether the depicted person 
would be humiliated, harmed, intimidated, threatened, or coerced.

3.  Distribution means the act of delivering to the actual or constructive 
possession of another, including transmission by electronic means.

4.  "Broadcasting" means the act of electronically transmitting a visual 
image with the intent that it be viewed by a person or persons.

5.  An intimate image is any visual depiction, including by electronic means, 
that:
    a.  Includes another person who is identifiable from the depiction itself 
or from information conveyed in connection with the depiction;
    b.  Depicts that person engaging in sexually explicit conduct or depicts 
the private area of that person; and
    c.  Taken under circumstances in which the person depicted had a 
reasonable expectation of privacy.

6.  "Sexually explicit conduct" is defined in Part IV, paragraph 68b, Manual 
for Courts-Martial (2016 Edition).

7.  "Private area" is defined in Part IV, paragraph 45c, Manual for Courts-
Martial (2016 Edition).

8.  In lieu of entering this interim change in reference (a), make a bold 
letter notation after Article 1167 of reference (a), SEE ALNAV 021/17 and 
file this ALNAV in front of reference (a).

9.  This interim change will be incorporated into the next printed revision 
of reference (a).

10.  Released by Sean J. Stackley, Acting Secretary of the Navy.//

BT
#0001
NNNN
UNCLASSIFIED//

Wednesday, April 19, 2017

The Influence of the European Court of Justice

CURIA

The Third Chamber (Sala III) of the Spanish Supreme Court overturned its earlier decision of 24 november 2015, which had found in favor of five candidates who were excluded from attending the School to become members of the National Guard because they had reached their 30th birthday during the year 2012.  They had alleged that this age limit constituted discrimination contrary to the principle of equality and free access to public service positions proclaimed by the Constitution.


The Spanish Supreme Court modified the criteria established in this earlier case due to a judgment of the Grand Chamber of the Court of Justice of the European Union (CJEU) of 15 november 2016 in response to a pre-judicial question presented by the Contentious-Administrative Chamber of the Superior Court of Justice of the Basque Country. The European Court of Justice responded that the requirement of 35 as the maximum age to enter into the Ertzaintza (the Basque police force) was not discriminatory because  it rested on an objective and reasonable basis, which excluded any violation of Directive 2000/78/CE, relative to the establishment of a general framework for equality of treatment in employment.

Given the differences in the cases it appears to this observer that the Spanish Supreme Court could also have set 35 as the maximum age to enter the National Guard School without violating the EU Directive or the CJEU's decision, but it clearly seems to have chosen not to.

Bahrain makes it official

Bahrain has changed its laws to permit the trial of civilians by military courts. Excerpt from this account:
Bahraini King Hamad bin Isa Al Khalifa approved on Tuesday amendments to some of the military law provisions after the amendments were passed by the Shura Council and the Council of Representatives. 
The king’s approval grants the military judicial system the authority to investigate terrorist cases that target Bahrain. 
A week ago, Bahrain’s parliament approved a constitutional change allowing military courts to try civilians. The bill revises a portion of Bahrain’s constitution by removing limitations on who military courts can try. 
On Tuesday, King Hamad issued a royal decree approving the amendment to the military judicial system. “The amendment added two clauses (17 ditto) that stipulated the crimes committed by, or in cohort with, terrorist(s) that come under the jurisdiction of military courts whenever committed against Bahrain Defense Force (BDF) or National Guard personnel, paraphernalia, aircraft, ships, vehicles, buildings, weapons, installations, camps, maneuvers, mobilizations, facilities, secrets, documents, records or official motorcades under military protection, routes, military operation zones, terrorist or state security crimes anywhere inside the Kingdom of Bahrain or abroad.”  
The Prime Minister, the BDF Commander-in-Chief and the President of the National Guard have been tasked, each according to his respective domain, to implement this law which becomes effective as from the day following the date of its publication in the Official Gazette.