Monday, July 31, 2017

Who decides military personnel policy?

Prof. Diane Mazur has written an excellent piece for Tom Ricks's blog on Foreign Policy. The issue: does Congress have to act on whether transgender persons can serve in the military, or is this in the President's wheelhouse? Or both?

Sunday, July 30, 2017

Clemency for Sgt. Azaria?

Lt. Gen. Gadi Eisenkot
IDF Chief of Staff
Haaretz's Amos Harel writes here about possible future steps in the divisive case of IDF Sgt. Elor Azaria. Excerpt:
If he submits a request to the chief of staff to ease his prison sentence, Azaria will remain in prison at least about a month before a decision is made on the request. The military appeals court ruled he would not begin serving his 18-month sentence until August 9. 
Until then, Azaria and his lawyers will have to decide whether to ask the Supreme Court to review the military appeals court decision. 
If he decides not to appeal again, he will enter prison on August 9 and only be able to file a request with [Chief of Staff Lt. Gen. Gadi] Eisenkot on September 7. Military law requires the chief of staff to respond such a request within 30 days, during which Eisenkot must consult with the military prosecutor’s office. 
Military sources told Haaretz that unless Azaria takes responsibility for his actions and expresses at least some degree of remorse, it is doubtful Eisenkot will accede to any request of his. The soldier’s lawyer, Yoram Sheftel, said he would be prepared “to discuss a concrete proposal” from IDF to lighten Azaria’s sentence. IDF sources rejected Sheftel’s approach, saying ball is in Azaria’s court to submit a request to Eisenkot. 
Following the appeals court ruling, Eisenkot said he intends to consider a request to ease the sentence, if Azaria submits one, “out of my sole commitment to the values of the Israel Defense Forces, its combat soldiers and those serving it.” He indicated he will not take into account pressure from politicians or public opinion, and that he views the case as an internal army matter. 
In his statement, Eisenkot also hinted at acknowledging that the IDF also erred in part of its handling of the case, saying the army had “learned lessons” from the case “and will also continue to do so” following the appeals court’s decision.
Israeli political leaders seem incapable of allowing the justice system to function on its own. A very bad pattern has emerged. The Chief of Staff also should have remained silent.

Pushback on the AFT's interim Machil fake encounter rulings

There is frustration in Kashmir over the Armed Forces Tribunal's decision to suspend the judgments in the Macil "fake encounter" case and release the defendants on bail. The Kashmir Observer has this lengthy article on the subject. Excerpt:
“They have a right of appeal, to the chief of army staff and to the Centre” said HS Panag, former general officer commanding of the army’s Northern Command and former member of the Armed Forces Tribunal. “After they have exhausted these appeals, they can go to the Armed Forces Tribunal.” Hearings in the case would go on, Panag said, and a verdict would be reached in two or three months. The tribunal had even been known to enhance sentences in some cases, he said. 
In Kashmir, however, hopes of jusitce in the case are dimming. “They will never get justice,” said Parveena Ahanger, chairperson of the Association of the Parents of Disappeared Persons, Kashmir. “No one will listen, they will only listen to the army men.” 
Parvez Imroz, a human rights lawyer in the Valley, called it yet another instance of the “impunity which the army and other institutions of state are enjoying.” Bitterness about the new turn in the Machil case has now opened up old grievances about military courts and the justice system as a whole.
*  *  * 
Yet the military court has drawn flak from both the tribunal and human rights groups. The tribunal reportedly found the military court’s judgment flawed as it “failed to establish the chain of evidences to confirm the circumstantial evidence which was relied upon by the Army court martial to convict the personnel”. 
Imroz feels the military court had no jurisdiction in the matter. “The army cannot try civil offences,” he said. “It can only try intra-army offences - indiscipline, fratricide.” Section 70 of the Army Act, 1950, he pointed out, states that court martials did not have the power to try cases of murder, culpable homicide or rape by armed forces personnel if the victim was “a person not subject to military, naval or air force law”. 
It does, however, make exceptions. The first of these says that military courts can try their personnel for such offences if they took place “while on active service”. Back in 2011, the army had reportedly contended that forces in Jammu and Kashmir were considered to be “in active service” all the time.

Your tweet is my command

Appellate court rejects Sgt. Azaria's appeal

The Military Court of Appeals in Tel Aviv today rejected the appeal filed by IDF Sgt. Elor Azaria. Ynet reports on the decision here. Excerpt:
Military Appeals Court President Maj. Gen. Doron Piles rejected the defense team's argument of discrimination against Azaria over claims similar incidents in the past did not go to trial, saying "the evidence the appellant requested to present bears no weight that could change the results of the trial and have no bearing on the issues under dispute. Seemingly, there is no concern of discrimination, perhaps except for in one case."
The court also rejected the claims the testimony of Cpl. T. was not credible, saying there was "no practical relevance to the appellant's claims that T.'s testimony was engineered by the IDF Criminal Investigation Division (CID)... T. confirmed his testimony to the CID in his testimony in court. We found no fault in the conclusion of the district court that found T.'s testimony to be credible. We do not accept Azaria's assertion that T. fabricated his testimony to match the positions of the IDF chief. There is no proof to the defense attorney's claim that words were put in T.'s mouth. He repeated his version over and over again of his own accord."
Furthermore, Piles said the court found that none of the witnesses "had a motive to falsely accuse Azaria."

The court also determined the defense failed to prove its claims IDF Chief of Staff Gadi Eisenkot's condemnation of the shooting immediately after the incident affected or influenced the judicial process.
It is unclear whether the court also ruled on the prosecution's appeal of the 18-month sentence for manslaughter or whether that remains under review.

Postscript: The court also rejected the prosecution's excessive-leniency appeal of the sentence.

Inside "the Glasshouse"

The Plymouth Herald reports here on the UK armed forces' correctional facility, the Military Corrective Training Centre at Colchester. The embedded MoD video is worth watching.

Saturday, July 29, 2017

Azaria appeal decision due tomorrow

But what kind of proportionality does the military justice system convey when it rules that smuggling lethal weapons is so many times more serious than lethally discharging one?

From this Haaretz report on the appeal in the case of
IDF Sgt. Elor Azaria

New light on Breaker Morant

Henry Harbord ("Breaker") Morant
Bushveldt Carbineers
The Australian's Mark Day has this fascinating column about newly-unearthed evidence concerning Breaker Morant. Check it out.

235 Egyptian football fans held for military trial

Egyptian prosecutors have sent hundreds of "Ultras White Knights" football fans to military court, according to this report:
Alexandria Public Prosecution on Thursday sent 235 Zamalek football club fans to the military prosecution to commence an investigation on the “Borg al-Arab incident”, Judge Mohammed Salah Gaber, the first attorney-general of West Alexandria prosecutions, announced.
Police arrested the fans after they carried out violence following a Zamalek vs. al-Ahli football game during the CAF Champions League in Tripoli. Clashes erupted on July 9 between Zamalek fans and Borg al-Arab stadium officials, leading to the injury of seven people. 
The Public Prosecution accused the Zamalek fans of damaging Borg al-Arab stadium, disturbing public peace and security, spreading ‘Ultras White Knights’ propaganda and of wearing T-shirts decorated with the images of 20 martyrs.
The ‘Ultras White Knights’ is a group of ardent football fans who support the Zamalek football club.
Contemporary human rights standards strongly disfavor the trial of civilians by military courts. Egypt is a persistent violator of this principle.

Post-retirement court-martial for pre-retirement misconduct by a Canadian reservist

The Cape Breton Post reports:
A former Armed Forces reservist faces a court martial Monday on charges including striking a superior officer and uttering a racial slur.
Retired Cpl. Garett Rollman is charged in incidents alleged to have occurred in February 2016, when he was still an active member, in Aldershot, N.S.
Rollman also faces two charges of "conduct to the prejudice of good order and discipline."
They include uttering a racial slur and acting in an intimidating manner.
Military Judge Commander Sandra Sukstorf will preside over the standing court martial.
Contemporary human rights standards disfavor the exercise of court-martial jurisdiction over retirees. Did the Canadian Armed Forces wait too long to prosecute Cpl. Rollman?

Friday, July 28, 2017

The psychological wounds of war and misconduct

Honolulu Civil Beat tells us that:
The mental health of alleged terrorist sympathizer Ikaika Kang, a U.S. army sergeant from Waimanalo, is under scrutiny at a time when the deep psychological wounds of war are getting more attention across the country.
During a preliminary hearing at the federal courthouse in Honolulu on Monday, Kang pleaded not guilty to charges that he attempted to provide material support to the Islamic State.
- - -
Kang is charged with four counts of attempting to provide material support to the Islamic State group based on events that occurred in Hawaii between June 21 and July 8, they said.
Federal officials say Kang met with undercover FBI agents he thought were with the terror group and provided classified military documents to the agents.
The FBI said in their criminal complaint that Kang wanted to commit a mass shooting after pledging allegiance to the Islamic State group.
From Time.

I bring this to your attention because this would not be the first case involving military personnel where the psychological strains and injuries from the battlefield affect them at home in all kinds of ways.  Some states in the U. S. have established Veterans Courts which are set up to handle injured veterans involved in the criminal justice system for minor crimes.  We are a long way from the days of Craiglockhart.  But I think we are still a long way from addressing the mental health issues for returning combatants.

I do have on my bookshelf Hunter & Else, eds., The Attorney's Guide to Defending Veterans in Criminal Court, VDP (2014) which is an excellent resource.

My sense is that the U.S. is not the only country and military dealing with the problem of mentally injured personnel--thus the posting.

UN Human Rights Committee 2017 concluding observations on Pakistan's military courts

The UN Human Rights Committee's July 25-26, 2017 concluding observations on the initial report of Pakistan can be found here. Among the Committee's observations:
Military courts 
23. The Committee is concerned at the extension of the jurisdiction of military courts to cases transferred from Anti-Terrorism 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 about 90 percent 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 or an effective right to appeal in the civilian courts; and that the charges against the defendants, the nature of evidence, and written judgments explaining the reasons for conviction are not made public. It is further concerned that the military courts 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 as well as their authority to impose the death penalty; (b) reform the military courts to bring their proceedings into full conformity with Articles 14 and 15 of the Covenant to ensure a fair trial.
Emphasis in original.

Each to their own!

The Court Martial Appeal Court of Canada [CMAC] was established by section 234(1) of the National Defence Act and declared at subsection 236 (1) to be a superior court of records The CMAC is a civilian court of appellate jurisdiction which hears appeals from courts-martial. A person subject to the Code of Service Discipline may appeal to the Supreme Court of Canada against a decision of the Court Martial Appeal Court.

At present, the Court is composed of a Chief Justice and a total of sixty (60) judges drawn from the Federal Court, the Superior Courts as well as the Courts of Appeal of the Provinces and the Federal Court of Appeal. One of the recently appointed judges has over 30 years of military service in the Regular Force. Prior to his appointment, he held numerous positions as a legal officer in the Office of the Judge Advocate General from there he was appointed directly to the Federal Court and the CMAC. The Chief Justice of the CMAC confirmed to Lawyer’s Daily on June 9, 2016 that this former commissioned officer now heads the Rules Committee of that Court.

As an aside, the US Uniform Code of Military Justice, 64 Stat. 109, 10 U.S.C. sub-chapter XKK, article 142 (b) (2)(B)(4) stipulates that: “A person may not be appointed as a judge of the court within seven years after retirement from active duty as a commissioned officer of a regular component of an armed force” to the US Court of Appeals for the Armed Forces. This is to ensure that the Court be, and be perceived, as ‘an independent civilian court unencumbered by ties to any of the military services”. Regrettably, in Canada no such restriction exists and, therefore, the situation may be perceived as being inconsistent with the role of the CMAC as a civilian tribunal.

Thursday, July 27, 2017

Rule 1 reminder

Global Military Justice Reform welcomes comments. We do have a rule, however: they must be submitted with the commenter's actual name -- nothing anonymous, no pseudonyms.

If you don't see a comment you submitted, it's almost certainly because you did not give your real name. Please, by all means, resubmit, but give your name.

Mother's milk

Lt. Carmen Quinteros, a Paraguayan national, had a baby who could not drink cow's milk and had to be breast fed on a daily basis.

La Tte. Carmen Quinteros recibió  una orden de la Justicia Militar para cumplir prisión preventiva por haber cometido calumnia y desacato a la disciplina militar. Foto: UHIn March of this year Lt. Quinteros requested, by means of a judicial measure, permission to breast feed her recently born son, on the basis of Law Nº 5508/15 on "Promotion, Protection of Maternity and Support of Maternal Lactation." Her request was denied by the military authorities and a summary proceeding for alleged offenses against military discipline and and insulting behavior (desacato) was brought against her. According to the military, Lt. Quinteros did not bring her complaint according to the prescribed procedure and within the chain of command. Filing the complaint outside the prescribed procedure provoked the filing of the summary proceedings against her.

The military court sentenced her to 45 days of preventive detention, The Human Rights Defender, Miguel Godoy, presented a habeas corpus to the Supreme Court on her behalf to prevent her arrest. Judge Blanca Irene Gorostiaga found in Lt. Quinteros' favor, ordering the end of the restrictive measure against her. 
At the end of May, another administrative summary proceeding was opened against Lt. Quinteros for the release of photos of the "Breast-feeding Room" at the unit in which she worked. According to the military authorities the release of these photos is considered an offense against military discipline. 
Her lawyer, Oscar Gonzalez, on July 26, 2017 filed an appeal to nullify the 45 days arrest that the military court had issued. The case has been remitted to the Criminal Chamber of the Supreme Court, which is the highest court and will determine whether the charges against Lt. Quinteros will be definitively dismissed.

A soldier's perennial dilemma

Global Military Justice Reform contributor Wing Cdr (ret) U C Jha has written this op-ed for DNA India on the dilemma faced by military personnel concerning the use of lethal force. His concluding observations:
The dividing line between a terrorist and civilian is not readily visible, either on the ground or in the law. Since insurgents/terrorists do not follow any rules of engagement, it is becoming increasingly difficult for a soldier to religiously follow the principle of distinction. Moreover, this principle does not specify a level of certainty that soldiers must achieve, or a level of risk they must accept to achieve that level of certainty. While a soldier has a duty not to harm a civilian, he cannot take a chance when there is a likely threat to comrades or persons he is protecting. While judicial officers have ample time to decide a case, a soldier on the ground has to take life-and-death decisions in a split second.

Wednesday, July 26, 2017

Parliamentary oversight of the Canadian military? Very little in fact

1.    As noted by the authors of  "CALLING THE HOUSE TO ORDER, above and beyond the occasional appearance by DND officials and military brass before a Parliamentary committee focusing on military matters or the publication of a periodic audit reports by the Auditor General, generally speaking, civil society in Canada exercises little oversight over the Canadian Armed Forces. 

Oversight is basically limited to the following three organizations:

Statutory bodies

First, the Court Martial Appeal Court of Canada [CMAC] which was established by section 234 (1) of the National Defence Act. The CMAC is a civilian court of criminal appellate jurisdiction which hears appeals from courts martial.
  • Summary trials. Of note, there is no judicial oversight for the summary trials. As a result none of the 13,119 summary trials that took place over the past nine [9] years has ever been subject of a review by a court of criminal appellate jurisdiction. Summary trials therefore operate within their own restricted universe. Hence, at present, the Canadian military justice might be in breach of article 3 2 sections 3(a) and (b) of the  UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, Volume 999, p. 171
2007-2008:  2,123
2008-2009:  1,933
2009-2010: 1,942
2010-2011: 1,770
2011-2012: 1,425
2012-2013: 1,220
2013-2014: 1,128
2014-2015:    857
2015-2016:     721

 Second, the Military Police Complaints Commission [MPCC] a Canadian federal government independent, quasi-judicial body, established by the Parliament following the Somalia Inquiry Report. It offers avenues of complaints against the military police similar to that of civilian police. The MPCC makes non-binding recommendations to the Provost Marshall on ‘conduct’ and ‘interference’ complaints investigated by the Commission.

Third, the Military Grievances External Review Committee [MGER] which advertises itself as a Tribunal, but it is not. The Committee’s mandate is limited to reviewing a small number of grievances and making non-binding recommendations to the Chief of Defence Staff on grievances from the rank and file. 

Administrative body

There is a DND/CF Ombudsman, a position created by the Minister of National Defence, not Parliament. A far cry from the parliamentary Inspector General recommended by the Somalia Commission of Inquiry in the 1990s. The current Ombudsman structure has none of the statutory powers and independence of a true parliamentary ombudsman. The DND/CF Ombudsman makes non-binding recommendations.

In the broader field of Military Administrative Law there is basically very little if any oversight, save for the possibility to apply to the Federal Court of Canada for a judicial review of a particular decision. This  means by having the military granted a sort of carte blanche in its decision-making capability in a widening sphere of competence. 

 The Canadian military should embrace third-party oversight as an opportunity to learn and to improve. The military must not operate as if it were a parallel government – it is accountable to government and to Canadians whom they serve. However, the military are not always welcoming of such oversight and recommendations. Consider that, of the 46 recommendations made in 2015 by the MPCC following the Fynes Public Interest Inquiry. None of these 46 recommendations were formally “accepted” by the military forcing the (then) Chairperson of the MPCC to conclude as follows:

In the limited number of instances where direct responses are given and reasons are provided for rejecting [our] recommendations, the reasons suggest a failure to recognize the seriousness of the deficiencies identified or a failure to understand the very nature of the issues to be addressed. Many of the responses nominally accepting the recommendations, as well as the few substantive comments made about the Commission’s findings, further confirm a general failure to acknowledge or even recognize what went wrong in this case . . . On the whole, the Notice of Action provided by the Military Police leaves the Commission and the Minister of National Defence (MND), as well as the parties and the public (assuming they are eventually allowed to see the Notice of Action), largely without meaningful answers.

Manipur ruling in Supreme Court of India

Human Rights Watch has issued the following statement concerning the decision of the Supreme Court of India in Extra Judicial Executions Victim Families Ass'n v. Union of India, Writ Pet. (Cr.) No. 129 of 2012:
India’s Supreme Court on July 14, 2017, ordered an investigation into alleged unlawful killings by government security forces in Manipur state from 1979 to 2012, Human Rights Watch said today. The court directed the Central Bureau of Investigation (CBI) to set up a five-member team to examine at least 87 killings by police, army, and paramilitary forces in response to a petition filed by victims’ families and nongovernmental groups in Manipur seeking investigation into 1,528 killings. 
The creation of a transparent, time-bound investigation team that has the full cooperation of local authorities would be an important advance for accountability in the Manipur killings. 
“There is finally some hope for justice for the families of the hundreds of men, women, and children who were killed by government forces in Manipur,” said Meenakshi Ganguly, South Asia director. “The Supreme Court order is a testament to the courage, hard work, and perseverance of victims’ families and rights groups.” 
The lack of accountability for serious abuses has become deeply rooted in Manipur because of the Armed Forces Special Powers Act (AFSPA), the 1958 emergency law under which the armed forces are deployed in internal conflicts and have broad powers to arrest, search, and shoot to kill. The law, which provides soldiers who commit abuses effective immunity from prosecution, is also used in other parts of India’s northeastern region and in the state of Jammu and Kashmir.
In a September 2008 report, “These Fellows Must Be Eliminated,” Human Rights Watch documented human rights abuses by all sides in Manipur, where close to 20,000 people have been killed since separatist rebels began their movement in the 1950s. The army, protected by AFSPA, committed widespread rights violations that fostered a culture of violence which encouraged similar abuses by the Manipur state police. 
The Supreme Court’s order follows its landmark decision in July 2016 that any allegation of use of excessive or retaliatory force by uniformed personnel resulting in death requires a thorough inquiry into the incident. The court added that such force was not permissible “even in an area declared as a disturbed area under AFSPA and against militants, insurgents and terrorists.” 
The court had initially set up a three-member committee under retired judge Santosh Hegde to investigate six of the 1,528 alleged extrajudicial killings, and in 2013 the committee informed the court that all six were unlawful. In July 2016, the court, ruling that the cases should be investigated, sought more information in each of the 1,528 cases from the petitioners, Extra Judicial Execution Victim Families Association and Human Rights Alert. 
The petitioners submitted additional information on 655 cases. In its final order on July 14, 2017, the court limited its directions largely to cases in which allegations were based on a judicial inquiry, an inquiry by the National Human Rights Commission, or an inquiry set up by Manipur state government under the Commissions of Inquiry Act. “It is not that every single allegation must necessarily be inquired into,” the court said. “It must be remembered that we are not dealing with individual cases but a systemic or institutional response relating to constitutional criminal law.” 
The court directed the CBI to file official complaints, known as First Information Reports (FIRs), in at least 87 cases, and then investigate, file charges where appropriate, and submit a compliance report by January 2018. 
The government and the army had opposed any investigation into the killings, asserting that all those killed were militants who died in counterinsurgency operations. The army said it cannot be subjected to FIRs for carrying out anti-militancy operations in insurgency-prone areas like Jammu and Kashmir and Manipur. 
The Supreme Court also noted that the state police not only failed to file FIRs against any police officers or other security force personnel in these alleged extrajudicial killings, but instead registered FIRs against the deceased for alleged violations of the law. The court stated: “Under these circumstances, it would be inappropriate for us to depend upon the Manipur Police to carry out an impartial investigation more particularly when some of its own personnel are said to be involved in the fake encounters.” 
Several government-appointed commissions and international bodies have recommended that the Indian government repeal AFSPA, but so far, the government has failed to take any action. 
“Fighting militant groups requires governments to make difficult decisions, but they cannot come at the cost of the rights to life and liberty,” Ganguly said. “To restore public confidence and prevent such abuses in the future, the Indian government should promptly repeal AFSPA.”

Uninformative journalism or unexplained judicial action?

The coverage of judicial decisions by news media is often deficient. Here is an example from India, where the Armed Forces Tribunal has suspended the sentences of five members of the armed forces, and granted them bail, in a high-profile matter known as the "Machhil fake encounter" case from Kashmir. The problem is that the media account gives absolutely no sense of why the AFT did what it did. Then again, is it possible that the court itself gave no explanation?

Tuesday, July 25, 2017

A final comment on a completely different court-martial

His Honor Judge
Jeff Blackett
The end.  British court-martial partly held in the U.S.

BLUF: A British court-martial is (almost) completely different from a U.S. court-martial.

But first, I must confess error in the delay in a final report.  All I can say is that work expanded to fill the time available.

The facts of the case are common and are similar to 90+% of adult military sexual assaults in U.S. courts-martial, so nothing different there.  Two co-workers socialize after work, they drink alcohol together, sex happens and the interpretation of the events splits into two opposite interpretations.

Opening statements.

            The openings appeared, to be a rather bland recitation of the facts that would be offered through the coming evidence.  Personally, I prefer the giving of a “road map” to the case, as opposed to the emotion laden openings I hear from U.S. military prosecutors.           Advocacy trainers in the U.S. tend to teach that the opening statement is your second chance to argue your case (the first being voir dire of the members).  So the difference between advocacy and presentation was noticeable.

The first witness and the first piece of evidence.

            The first evidence was the playing of a video recorded interview of the complaining witness with an investigator.  In a U.S. military trial, the complaining witness (any witness) would first have to testify. 

            Even then, the video might not be admissible.  In the U.S., the witness’s prior out of court statements are hearsay unless they fall within one of many exceptions to the hearsay rule—for example an excited utterance made under the stresses, strains, and emotions of a very recent event.  The video would not qualify as an excited utterance.  If you want, you can view Military Rule of Evidence 803 here.  Two other ways the prior out of court statement could be offered is as either a prior consistent statement to rebut a challenge to an in-court statement, or as a prior consistent statement of an in-court statement.  Although here it would be unlikely that the full statement would be admitted, just a clip from the video.

            Then we had a live witness—behind a screen—the complaining witness (CW).  First the bailiff brought in a screen which was placed on the shelf in front of the CW.  All the gawkers had been asked to clear the room (with salutes and bows) before the CW was brought in to sit behind the screen.  All the members and judge could see her, the prosecution could see her, but the accused and his counsel could not see her while she testified.  The screen was set so that the defense counsel could see her during cross-examination.  This would not have happened in a U.S. court-martial under the circumstances.  So, the accused did not really get the right to face his accuser in court, just hear her.  Of course, all of this seemed a little odd, because everyone had just watched a little over three hours of her on a video.

No, objections.  There were no objections during testimony.  Objections seemed to be reserved until the close of the prosecution case.  The sole objection came from the judge, outside the presence of the members, who asked if it was necessary to watch the whole 3+ hours of video.  At the prosecutor’s insistence, he allowed it.  We observed differing reactions to the video from the members which I will not be commenting on other than to say I’m not sure the full showing was effective.  There was plenty of hearsay which a U.S. military defense counsel might have been found professionally ineffective if there were no objection.

Timing.  Court sat from 1000 to 1400, with a lunch break.  I’m used to starting at 0830 and going to at least 1700.  On occasion, I’ve been in court until 0300, as have some of my colleagues.  So, suffice it to say the judge’s expression of concern for the “long day,” was—well it was completely different.

178 and counting . . .

During the night, Global Military Justice Reform achieved another landmark: our first known reader in Timor-Leste, bringing the number of jurisdictions to a whopping 178. At last count, we have had 3676 posts, 509 comments, and 452,489 hits.

Virtues of transparency on display in Jordan -- albeit belatedly

The New York Times reports here on the release of a video showing the Jordanian soldier's murder of three American Special Forces soldiers. Jordanian Air Force Sgt. Ma’arik al-Tawayha was convicted by a military court and awarded a life sentence, but this video was not released until afterwards, to rebut claims by his tribe that he had been railroaded. As the article points out, the video also makes clear that official Jordanian statements at the time of the murders were false.

1. Wouldn't it have been better all around to release the video much earlier?

2. Any bets on clemency?

Military court jails "shadow" judge in Venezuela

The misuse of military courts in Venezuela continues. Consider this report:
A Venezuelan military court has ordered the imprisonment of a lawyer that congress named to a shadow Supreme Court in a swipe at President Nicolas Maduro, a rights group and an opposition leader has said. 
Angel Zerpa, arrested Saturday, has been imprisoned and has gone on a hunger strike, said Foro Penal, a group that defends political prisoners in this oil rich country in the throes of a political and economic crisis. 
Opposition leader Henrique Capriles also said Zerpa had been imprisoned. Zerpa was denied the right to have an attorney of his choice with him when he appeared before the military court, Capriles said. 
"No lawyer, no due process, and going before a military court. What is this?" Capriles said in remarks on the social medium Periscope. 
Maduro warned Sunday that 33 judges whom the opposition- controlled congress designated last week as a sort of shadow Supreme Court would be arrested. 
So far, Zerpa is the only one known to have been arrested. 
The opposition says the current top court is packed with hardcore Maduro loyalists. 
Many of its justices were hastily appointed shortly before Maduro's ruling party lost its majority in congress in 2015 legislative elections. 
The Supreme Court said that by swearing in shadow judges, congress overstepped its bounds and committed treason.

Saturday, July 22, 2017

Union-Tribune drills down on "Fat Leonard" cases

The San Diego Union-Tribune has an excellent, detailed report on the administration of military justice in the "Fat Leonard" Navy corruption scandal. A few cases have been pursue in the civilian federal courts, but far more have been addressed within the military justice system or through the imposition of administrative sanctions. A good deal of information, especially about who has been punished below the flag officer grades, has been withheld from the public. One knowledgeable observer, a retired Navy JAG Captain, says the "Fat Leonard" cases are worse than the notorious Tailhook scandal. Tailhook at least ushered in a new era with respect to the treatment of women in the armed services. What will be the long-term fallout of the current cases?

Wednesday, July 19, 2017

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

HISTORICAL PERSPECTIVE

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

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

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


AN UNCONSTITUTIONAL PENAL PROCEDURE?

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

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

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

A FLEETING MOMENT OF  LUMINOSITY


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

Why is this journalist being charged before a military court?

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

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

Why is this case being sent to a military court?

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

Tuesday, July 18, 2017

Civilian oversight in Canada

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

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

Summer doldrums

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

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

Friday, July 14, 2017

Erosion of judicial independence of India's Armed Forces Tribunal

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

Happy Bastille Day


Thursday, July 13, 2017

Australian military justice in a nutshell

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

Tuesday, July 11, 2017

Draft available of proposed Manual for Courts-Martial changes

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

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

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

* Global Military Justice Reform Blog Rule 1.

Saturday, July 8, 2017

GAO report on separation of personnel with mental health conditions

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

Ticket to ride

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

Friday, July 7, 2017

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

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

Justice Leonen's "Mindanao" dissent

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

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

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

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

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

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

Special Jurisdiction for Peace -- unresolved questions

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

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

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