Tuesday, August 22, 2017

Tattoos and conscription

What does a country do when it relies on conscription and also has rules against tattoos? Consider this (illustrated) story about the prosecution of a draftee in South Korea:
On August 17, Judge Yoon at Seoul Southern District Court found Mr. Han guilty of attempting to avoid mandatory military service by damaging his own body. Thus, he was sentenced to 8 months of imprisonment in addition to 2 years of probation. 
According to the court, Mr. Han got his first tattoo at the age of 14 in 2011. He had a person's face on his left side of his chest and arm, as well as a dragon on his right side of his chest and arm.
In 2013, he decided to get his entire back area done with a dragon tattoo. The following year in 2014, he got a tattoo of a tiger lurking inside a deep forest going across his stomach and a serpent wrapping around both his legs. Towards the end of 2015, Mr. Han was completely covered in tattoos.
In November of 2016, Mr. Han went in for his physical examination at the Seoul Regional Military Manpower Administration Office.
Military officials gave Han a grade-4 due to his full body tattoo and he was enlisted as a social service worker instead. However, the officials, who found his tattoos suspicious, contacted police for further investigation on Mr. Han's case.
During the investigation, Mr. Han confessed to hearing about people receiving military exemptions from full body tattoos.
Judge Yoon stated, "It appears Mr. Han did not initially have intentions to avoid the military service by getting tattoos. He started getting tattoos during junior high school and decided to get additional work done before his physical examination. Upon receiving a grade-4, he was stationed as a social service worker, which was taken into consideration when determining his sentence."
According to the MMA, 35 out of 165 cases involving military exemption attempts from April 2012 to May 2017 regarded tattoos.

Monday, August 21, 2017

HRW protests Brazilian Senate proposal

Human Rights Watch has issued a statement objecting to a Brazilian proposal that would prevent civilian courts from trying homicide cases where the defendant is a member of the armed forces and the victim is a civilian:
Brazil’s Senate is being asked to consider a bill that would shield members of the Armed Forces accused of unlawful killings of civilians from prosecution in civilian courts. The Senate should reject the bill because it increases the risk of impunity rather than justice in these cases. 
“The leadership of Brazil’s Armed Forces wants to bring back a practice that was used during the time of the dictatorship,” said Maria Laura Canineu, Brazil director at Human Rights Watch. “Under the proposal, the military would sit in judgment of itself in cases that constitute serious violations of human rights, a recipe for impunity.” 
At the end of July 2017, Brazil’s government ordered the deployment of thousands of members of the Armed Forces in Rio de Janeiro in response to an increase in violence. The soldiers will remain in the city until the end of 2018, said the commander of the Army, General Eduardo Villas Boas
Members of the Armed Forces are patrolling the streets of Rio and conducting raids alongside state military police and civil police officers. If the bill is passed, soldiers charged with unlawful killings or attempted killings of civilians during those operations will be tried in military courts, while other law enforcement personnel will continue to face civilian courts. Civilian courts should continue to have jurisdiction over all unlawful killings cases irrespective of the alleged killer, Human Rights Watch said. 
In the military justice system, the courts of first instance are staffed by four military officers and a civilian judge, all with an equal vote. The appeals court (the Superior Military Tribunal, SMT) is made up of 15 military officers and only 5 civilians. Its decisions can be appealed to the Supreme Federal Court, a civilian court. 
The Military Criminal Code, approved in 1969 during Brazil’s military dictatorship (1964-1985), provided that unlawful killings of civilians should be tried before military courts, but it was amended in 1996 to move trials for such crimes to civilian courts. Adoption of the bill would reverse a very important step in leaving behind Brazil’s authoritarian past and strengthening the rule of law, Human Rights Watch said. 
Under international norms, extrajudicial executions and other grave human rights violations should not be tried before military courts. The Inter-American Court on Human Rights has ruled that “military criminal jurisdiction is not the competent jurisdiction to investigate and, if applicable, prosecute and punish the perpetrators of human rights violations.” 
The Inter-American Commission on Human Rights has held that it is not appropriate to try violations of human rights before military jurisdictions given that “when the State permits investigations to be conducted by the entities with possible involvement, independence and impartiality are clearly compromised.” 
The United Nations Human Rights Committee, which monitors implementation of governments’ obligations under the International Covenant on Civil and Political Rights, has called on states parties to ensure that military personnel alleged to have committed human rights violations are subject to civilian jurisdiction. According to the committee, the “wide jurisdiction of the military courts to deal with all the cases involving prosecution of military personnel ... contribute[s] to the impunity which such personnel enjoy against punishment for serious human rights violations.” 
Villas Boas has called for the Senate to approve the bill, contending that soldiers deployed in Rio de Janeiro need “legal protection.” In a note to the media, the army also said that subjecting soldiers to the jurisdiction of civilian courts “can hinder prompt reaction” during security operations. 
“Brazil´s civilian legal framework provides full due process guarantees to any soldier accused of an unlawful killing, just like to any other citizen,” Canineu said. “What the Armed Forces really want is to stack the deck against victims of serious human rights violations getting justice.”

Friday, August 18, 2017

UK civil control and oversight of military produce beneficial results for military families

The BBC News reports on the results of an Inquest conducted into the death of Private Phillip Hewett who was killed by a roadside bomb while travelling in a lightly armoured "snatch" Land Rover in Iraq.  He was the 37th soldier to be killed in the such vehicles in Iraq and Afghanistan which became know as "mobile coffins." Following an Inquest, she sued the Ministry of Defence under the Human Rights Act.   But the UK military continued to contest her case until an Inquiry into the Iraq war conducted by Sir John Chilcot revealed that the Ministry of Defence had known about the vehicle's vulnerability and for years had failed to provide more heavily armoured vehicles.
We have found that the Ministry of Defence was slow in responding to the threat from Improvised Explosive Devices and that delays in providing adequate medium weight protected patrol vehicles should not have been tolerated. It was not clear which person or department within the Ministry of Defence was responsible for identifying and articulating such capability gaps. But it should have been.
The UK government accepted the findings of Sir Chilcot in relation to the Snatch Land Rover which were published on July 6, 2016 and resulted in a settlement of the case and an apology from the Defence Secretary to the late Phillip Hewett's mother by Sir Michael Fallon for failures that "could have saved lives."

End of the line for the Gaynor case

The High Court of Australia today denied Bernard Gaynor's application for leave to appeal in Gaynor v. Chief of Defence Force, with costs. Background here; excerpt from the latest news:
During a complex hearing at the High Court in Brisbane on Friday, Justices Anthony Keane and James Edelman were told the appeal against the Chief of Defence Force's decision hinged, in part, on military regulations about the suitability of officers to serve. 
Those included following orders and official ADF policy, which prohibits its members making political statements. 
Mr Gaynor had argued he wasn't in uniform, on base or assignment when he made the comments and as a reservist had a different status to a regular officer. 
The High Court Justices, however, said that sufficient grounds to establish special leave to appeal the federal court ruling had not been made out and dismissed the appeal.

Thursday, August 17, 2017

Are the padres' lips sealed?

CBC News reports on a controversy involving the duty of Canadian military chaplains to report crimes under some circumstances. Excerpt:
The Canadian military's marching orders for chaplains who counsel perpetrators or victims of sexual misconduct is [sic] causing a crisis of conscience for some clergy, federal documents reveal. 
A series of morale and welfare reports obtained by CBC News under Access to Information legislation show the issue of pastors being compelled to testify in court has become a matter of increasing unease among military clergy. 
"There is concern by chaplains that they are potentially breaching the confidentiality of those receiving spiritual care," said a March 2015 summary prepared by the military chaplain general's office. Moreover, the report said, "the existing framework for legal assistance to chaplains does not provide legal advice for them." 
Pastors on bases along the West Coast seemed the most concerned about the ethical dilemma, and at one point they consulted with the regional prosecutor's office to review legal issues related to chaplain confidentiality in courts martial. 
Directive from the top 
But as far as the military's top spiritual adviser is concerned, the issue is clear-cut.
Brig.-Gen. Guy Chapdelaine has issued a directive that says, with the exception of confessions heard under the sanctity of Roman Catholic reconciliation, pastors are required to disclose what they have been told if a crime has been committed. 
"In certain circumstances, there is a duty to report what has been revealed in a counselling situation," said the Oct. 23, 2015, directive, recently obtained by CBC News through Access to Information. 
The directive states: "With the exception of an exchange of sacrament reconciliation with a Roman Catholic priest, confidentiality in pastoral care and counselling is not applicable" when the person is a danger to themselves or others, when the incident involves child abuse or when a court orders a pastor to testify. 
Further, "all notes and documentation, including all emails concerning the case," may be turned over to the court for "consideration" during the trial. 
The chaplains could be called upon to testify, but "will share all information with investigators only with the written consent of the victim." 
They should also "encourage, and where appropriate enable" the victim to report incidents.

Wednesday, August 16, 2017

A culture of presumed guilt?

The culture within the military has become one of presumed guilt for the accused. Military attorneys wield tremendous power over service members accused of misconduct. Army trial counselors have the power to pull decision authority from commanders who ask tough questions before passing judgment. Many commanders are hesitant to challenge trial counselor recommendations.

U.S. Army officer Chase Spears
 Letter to the Editor, Washington Post

A bit of good news in Venezuela

We learn from this report that Venezuela's new National Constituent Assembly -- the superlegislature composed entirely of loyalists of President Nicolás Maduro -- has directed that the hundreds of civilian protesters who had been charged before military courts will be tried in the regular courts. The step was proposed by Sr. Maduro.

Tuesday, August 15, 2017

New Zealand introduces a bill to update the military justice system

Scoop Parliament tells us that:
A bill that will update and better align the military justice system with the New Zealand criminal justice system was introduced to Parliament yesterday.
The Military Justice Legislation Amendment Bill will amend the Armed Forces Discipline Act 1971, the Court Martial Act 2007 and the Court Martial Appeals Act 1953.
“This Bill introduces a number of significant improvements to the military justice system,” says Defence Minister Mark Mitchell.

Judicial independence in Suriname

Diego García-Sayán
UN Special Rapporteur
on the Independence of
Judges and Lawyers
The Office of the High Commissioner for Human Rights today issued the following press release:
The independence of the judiciary in Suriname must be guaranteed by the State, the United Nations human rights expert on the independence of judges and lawyers has said, amid concerns over a long-running murder case in which the country’s president stands accused. 
Special Rapporteur Diego García-Sayán condemned the threats to judicial independence and the repeated delays which have dogged the case against President Desiré Delano Bouterse
President Bouterse is among the defendants standing trial for allegedly murdering 15 political opponents in 1982 in a case known as the “December murders”. 
“I am concerned that there have been repeated attempts to interfere with or delay the trial,” said Mr. García-Sayán, whose specialised mandate deals with judicial independence. 
The trial process began in 2007 – 25 years after the murders – with President Bouterse among the 25 defendants.  
But in 2012 the country’s parliament granted amnesty to all the accused after changing the law in order to do so. 
“It is the State’s duty to respect and observe the independence of the judiciary, by allowing judges to decide cases impartially, without any improper influence, pressure, threats or interference, by either the executive or the legislative branch.” 
He added: “The independence of the judiciary, as enshrined in the Constitution of Suriname, as well as in several international human rights instruments, must be guaranteed by the State, particularly when dealing with serious human rights violations.” 
The Military Court in charge of the trial later found the Amnesty law unconstitutional and ordered the proceedings to start again. 
Mr. García-Sayán praised this decision, highlighting that amnesty measures could not be applied under international law unless States had met their obligations to investigate crimes and punish those responsible. 
“A failure to investigate and bring to justice perpetrators of human rights violations would be in breach of international law instruments,” the Special Rapporteur said. 
“The absence of a fair and expeditious trial of the 1982 murders would also endanger the victims and their families’ right to truth, as well as the general fight against impunity in the region and globally,” he added. 
President Bouterse has previously labelled the trial as a threat to national security. 
 *   *   *
Mr. Diego García-Sayán (Peru) has been Special Rapporteur on the independence of judges and lawyers since December 2016. As Special Rapporteur, Mr. García-Sayán is part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system, is the general name of the Council’s independent fact-finding and monitoring mechanisms that address either specific country situations or thematic issues in all parts of the world. Special Procedures’ experts work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent from any government or organization and serve in their individual capacity.

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Rule of law v. negotiated justice in Somalia

The facts in the case are essentially these. A Somali soldier shoots a government minister to death. He is tried in military court and sentenced to death. The judgment is upheld on review. All that is needed is the signature of the country's president. But now it seems that the accused's clan hopes to reach an understanding with the victim's clan, presumably letting him off the hook. Details from Somali Update here. Excerpt:
CLAN INFLUENCE 
The military court official admitted that since when the killer soldier was put on trial for the death of the late minister, there was increasing pressure from relatives and his Habar Gedir clansmen pushing to his release. 
The family of the late minister, which comes from Huber sub-clan of Rahanweyn, publicly opposed the suggestions demanding the release of the soldier in return for compensation to the family of the deceased. 
The case now seems to be a tough test for President [Mohamed Abdullahi Mohamed] Farmajo's administration. 
"The pressure continues to affect us. After the trial the Habar Gedir clan started to pushing for payment of compensation [diya money] in return for the killer's release." the court official added. 
Somali Update has learnt that politicians and Members of the Parliament from Habar Gedir met President Farmajo two weeks ago in an attempt to spare their man from the execution alleging that "the shooting was not deliberate". 
According to a source at the meeting, the Habar Gedir members urged the president to allow their representatives to negotiate with the Huber clan members to reach mutual settlement into the death of the minister
This was backed by recent demonstration staged by the members of Habar Gedir in Mogadishu. 
But how ever, the military court official says the ball is to the court of Villa Somalia.
"If the president signs today, tomorrow we shall carry the execution." he told Somali Update.
Rule of Law, anyone? Doesn't the public have an interest here?

Follow-up on the news

In 2015, Global Military Justice Reform reported on a case in the Federal Court of Australia concerning whether a reservist could be discharged for homophobic comments he made online. The Defence Force appealed and prevailed before a three-judge panel of court earlier this year in Chief of Defence Force v. Gaynor [2017] FCAFC 41. The case is discussed here and here. The reservist, ex-Major Bernard Gaynor, has applied for leave to appeal to the High Court. The High Court's website does not indicate any action on the application.

Who should try this case?

A U.S. naval officer is suspected of having murdered his civilian wife by defenestrating her in Mons, Belgium. Should the U.S. exercise primary jurisdiction under the NATO Status of Forces Agreement, or should Belgium try the case? This article by Carl Prine in the San Diego Union-Tribune gives details. Unlike forum choices in the United States as between military and civilian forums, there are substantial, basic differences between Belgian criminal procedure and U.S. military procedure. According to the suspect's Belgian attorney:
Belgian courts lack a speedy trial and there's no right to a trial by jury. Defendants can't confront or cross-examine witnesses or contest hearsay testimony. The judge has requested that witnesses be hypnotized to try to recover memories.

Saturday, August 12, 2017

More hazing allegations, this time involving the British Army Foundation College

The headline for this Daily Mail article is definitely eye-catching:
Cadet scandal as SEVENTEEN Army instructors are charged with attacks on recruits - but they deny claims they pushed teenagers' heads under water and forced excrement into their mouths
Stand clear . . .

Still more misuse of military courts in Lebanon

Six civilians have been arrested by order of a military investigating judge in a corruption and bribery case involving the Lebanese Army Military Academy, according to this article from The Daily Star. Despite occasional reports of possible reforms, Lebanon seems unable to kick the habit of using military courts to prosecute civilians, contrary to human rights norms, which strongly disfavor the practice.

Public trial and notice of Court Martial proceedings

If notice is not given that a trial is to be conducted, is the right to a public trial infringed? So it seems. According to this Darlington & Stockton Times report:
THE GOVERNMENT has introduced new arrangements to ensure military court proceedings are not taking place in private, after the issue was raised by The Northern Echo
Army chiefs have now changed their procedures to ensure the public and the media are properly informed about court martials, after Richmond MP Rishi Sunak raised the issue with Defence Minister Mark Lancaster
It follows an instance at Catterick Garrison earlier this year when two cases of manslaughter against soldiers who had served in Afghanistan was not heard in public, because the Ministry of Defence (MoD) had not given sufficient advance notice to enable the general public and media to attend. 
A journalist working for The Northern Echo and its sister paper Darlington & Stockton Times contacted Mr Sunak about the issue. 
As a result he wrote to the minister pointing out that the Ministry of Defence had breached its own guidelines about advance notice of military hearings, which must adhere to the principals of open justice by being heard in public. 
In a letter to Mr Sunak, Defence Minister Mark Lancaster said changes had been made to ensure that public holidays do not interfere with the standard procedure for publicising cases at least one day in advance.

Why was this Russian case tried in a military court?

An imam has been convicted by a Russian military court on the basis of a sermon he gave, according to this Eurasianet report. Excerpt:
Magomednabi Magomedov, a Salafist imam, received a five-year prison term from a military court for giving an allegedly unlawful sermon in 2016 in Dagestan. To help with the prosecution, authorities turned to an expert in content analysis, a method of examining texts and speeches for patterns of explicit or implicit meanings. The expert’s findings played a key role in convicting the imam on a charge of attempting to incite terrorism. 
The problem was that Magomedov’s sermon did not advocate terrorism, but rather stressed the duty of Muslims to peacefully resist the closure of Salafist mosques and other encroachments on religious freedom in Russia. Magomedov’s trial thus highlights the hazards of trying to quantify criminal intent. 
Magomedov was the imam at the Vostochnaya Mosque in the Dagestani city of Khasavyurt. His outspokenness earned him powerful enemies in the local administration, and he was sentenced in the fall of last year. In early 2017, Russia’s Supreme Court upheld his conviction, but reduced his sentence by six months.
Human rights jurisprudence strongly disfavors the trial of civilians by military courts.

New magistrates and new law in Cameroon

Cameroon has added 14 new military magistrates, according to this report. The good news is that the decision to prosecute is now made by prosecutors, who no longer need to wait for ministerial approval. The bad news is that the military court's jurisdiction extends beyond members of the armed forces and gendarmerie to include some offenses by civilians.

Resumption proposed for Ukrainian military court

We learn here from Ukrinform:
Colonel of Justice of the Directorate of Legal Assistance of the General Staff of the Armed Forces of Ukraine Yuriy Bobrov said this today at a briefing in the Defense Ministry, an Ukrinform correspondent reports. 
"The activity of the Military Court in Ukraine was suspended in 2010. This situation should be changed, as the activity of military courts is effectively carried out in more than 40 countries of the world, including in 12 European countries. Each fifth state, which has its own army, has military courts," Bobrov emphasized. 
He clarifies that there is no need to amend the Constitution of Ukraine for the Military Court in Ukraine to resume its work again. It is enough to amend only the Law of Ukraine "On Judicial System and Status of Judges". 
He expressed hope that this bill would be approved by the Verkhovna Rada.
Earlier reporting can be found here. The Kyiv Post has further information, including this:
The instances of biased investigations into criminal cases against servicemen and their subsequent hearing by courts located in the area of the special operation in the east of Ukraine can serve as an argument in favor of reinstating military courts, [Col. Bobrov] said. 
“Cases against servicemen charged with offences committed in a military conflict zone should be heard above all by a competent court observing the rule of law principle, that is, to be impartial and unbiased. And tell me, can a general jurisdiction court – a district or a city court – which is to some extent under the enemy’s information influence impartially hear a case in relation to a serviceman? I am convinced it cannot,” Bobrov said.

The return of the rubber chicken case

HMAS Newcastle
At last, the long-running Royal Australian Navy rubber-chicken hazing case seems to have quacked its last. According to this report, it ended with a whimper. All that was left, in the case of Able Seaman Marine Technician Rohan Martin Angre, was a charge of assault for having poured soy and fish sauce over the head of a shipmate aboard HMAS Newcastle in 2011. "He was convicted of that offence without punishment on the condition he enter a good behaviour bond for 12 months."

Fallout of "Marines United" scandal

Corey Dickstein of Stars and Stripes has written this informative interim report on the disciplinary and administrative actions the U.S. Marine Corps has taken in light of the "Marines United" nude photo-sharing scandal. Two officers have been relieved of command and 33 other Marines have been penalized:
In addition to the two fired commanders, two Marines have been involuntarily separated from service, another has been jailed and 30 others have faced some form of reprimand for actions related to the scandal, said Marine Maj. Iain Pedden, leader of the Marine Corps’ military justice branch. 
The Naval Criminal Investigative Service has identified 78 active-duty and reservist Marines as persons of interest in a range of activities related to the Marines United scandal, Pedden said Tuesday. To date, 45 cases have been adjudicated, 30 have been sent to commanders for disposition and three others are continuing to be investigated by NCIS. 

Friday, August 11, 2017

Acquittal in court-martial of Canadian retiree

Not long ago Global Military Justice Reform had a short post concerning the court-martial of a retired Canadian Forces reservist. By way of follow-up on the news, readers may be interested to know that the military judge, Cmdr. Sandra Sukstorf, acquitted the accused. Details here. Presumably a statement of reasons for the acquittal will be posted in due course on the website of the Office of the Chief Military Judge.

Algeria amends its Code of Military Justice

On August 10, 2017, the TSA Algeria reports that The People’s National Assembly (Lower Chamber) of Algeria is currently in the process of amending the Code of Military Justice which governs the People National Army (ANP), the Algerian National Navy (MRA) and the Algerian Air Force (QJJ) plus the Territorial Air Defence Forces. The principal amendments include the following:
1. The jurisdiction of military tribunals will be expanded to include the trial of civilians who work in the Defence sector.
2. The jurisdiction of military police office will also be expanded to become peace officers.
3.  Each of the six territorial division will now house a Military Court of Appeal
4. The bench for Military Court of Appeal tribunal will now be composed of five members. This includes the President (a civilian); two military judges; and, two military members of the same rank as the accused. ("military assesseurs")
As an aside, there are approximately 147,00  persons serving in the Algerian Regular Force, 187,000 in the Reserves and close to 187,000 in paramilitary organizations.  Algeria has compulsory military service for men aged 19-30 for a total of 12 months. Their military expenditures is approximately 4 % of the GDP.

Thursday, August 10, 2017

An April Fool's joke in August?

Can it really be that the Indian Armed does not permit married women to serve as judge advocates? So it seems, judging by this excerpt from The Indian Express:
Not recruiting married women in the Judge Advocate General (JAG) arm of the Indian Army amounts to “hostile and 100 per cent discrimination”, the Delhi High Court said on Thursday. The observation by a bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar was made during the hearing of a PIL by a lawyer claiming that there was institutionalised discrimination against married women by not inducting them in the JAG service. 
The court also questioned the government about the logic behind “ousting married women” from the JAG, the legal branch of the Army. “Today, women are fighter pilots and you say they (married women) are not fit for the JAG. What is the logic behind ousting married women? That is hostile discrimination. It is 100 per cent discrimination,” the bench said. 
Advocate Charu Wali Khanna, appearing for the petitioner, said that unmarried women after joining the JAG were not allowed to marry. To this, the central government standing counsel Kirtiman Singh said the bar applied to unmarried men and women only during the nine to ten-month training period.
Hello? 

Why are these cases being sent to military court?

Cameroon's military is arresting civilians who wear military uniforms illegally, and sending them to military court, according to this report.

Human rights norms strongly disfavor the trial of civilians in military courts.

Wednesday, August 9, 2017

Deferment of confinement denied for Sgt. Azaria

Lt Gen Gadi Eisenkot
IDF Chief of Staff
The Israeli Court of Military Appeals has denied a request by Sgt. Elor Azaria to delay service of his 18-month manslaughter sentence until the Chief of Staff acts on a clemency petition. Details here from The Jerusalem Post.

18 years for lèse majesté

Reuters reports that a Thai military court has sentenced a civilian to 18 years in prison for insulting the monarchy and computer crime. There is no appeal of the sentence because the defendant was arrested during a period of martial law.

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

Tuesday, August 8, 2017

Welcome, Vanuatu!

Within the last two hours, Global Military Justice Reform has had its first visit by a reader in Vanuatu. That makes readership from a total of 179 jurisdictions. Welcome aboard, Vanuatu!

AFT's Machil fake-encounter decision: is it appealable, and if so, by whom?

This Kashmir Reader story explores who can appeal the recent decision of the Armed Forces Tribunal in the Machil "fake encounter" case. Excerpt:
The decision to release five troopers of 4 Rajputana Rifles convicted in Machil fake encounter by an Army [sic] Forces Tribunal (AFT) can only be challenged by the Indian army, legal experts say. In their opinion, the J&K [Jammu & Kashmir] government relinquished the powers to take the case to a civilian court when they agreed to army’s request court martial. 
“If the army wants, they can challenge the AFT decision in the High Courts of Srinagar and Delhi,” said senior lawyer, Zafar Ahmad Shah. “Every order can be challenged and army can challenge the AFT decision under the Indian Constitution.” 
Whether the Indian army was ready to take the step is not clear. But legal experts believe that state government can’t exert any power to approach a higher court. 
Explaining the legalities, Shah said that the case pertaining to the fake encounter by the accused army men was handled by army itself. “The prosecutor, the accused and the judge belonged to the army after they chose to run a trial in the army court, which they had a right to,” he said. 
After filing of the charge sheet in December 2010, the army decided to hold their own court instead of standing trial in a civil court. Shah said, “All the investigation, prosecution and other things were handed over to the army (by the police).” 
So it is up to them now whether to file a writ against the AFT which has stayed the conviction of the army court besides suspending the life imprisonment and release the five men on bail on July 26 this year.” 
Shah’s views are seconded by noted advocate G N Shaheen. “Yes, army can challenge the verdict, but the question remains whether it will.” 
Another legal expert said that “the AFT order can be challenged under 31st section of Armed Forces Special Powers Act (AFSPA).” He explained that the victim families can also challenge the order “but they will have to seek permission from AFT and then, they can even move to Supreme Court”.

Monday, August 7, 2017

Foe of misuse of military courts dismissed in Venezuela

Venezuela's new pro-Maduro Constituent Assembly has dismissed the country's Attorney General, Luisa Ortega Diaz, and barred her from leaving the country, according to this report. She had, among other things, opposed the use of military courts to try civilians. The Supreme Court has directed that she be investigated for unstated misconduct.

Clemency and confinement

IDF Sgt. Elor Azaria, convicted of manslaughter, has argued that his 18-month sentence should not go into effect until his clemency petition is acted on by the Chief of Staff. Prosecutors from the office of the Military Advocate General have opposed that request on the ground that it would create an exception not provided for in the Military Justice Law and set a bad precedent. Details here.

Sunday, August 6, 2017

Challenge to tribunal rules in India

A petition has been filed in the High Court in Chandigarh challenging newly proposed rules that could affect the independence of the Armed Forces Tribunal, according to this Times of India report. Excerpt:
The Punjab and Haryana high court has issued notice to the Union government on a plea challenging the recently notified rules for various tribunals, which allegedly undermine the independence of the quasi-judicial bodies and place them under the control of the Centre. 
The petition, filed by former president of the Armed Forces Tribunal (AFT) Bar Association Surinder Sheoran, said that the rules were in contravention of law laid down by the Supreme Court in the cases of Madras Bar Association and R Gandhi and of the Punjab and Haryana high court in Navdeep Singh versus the Union of India
It has been stated in the petition that so far as the AFT was concerned, the Union Government had provided that it would function under the ministry of defence. In addition, the defence secretary, who is the first opposite party in every litigation, should be a part of the committee for recruiting and re-appointing members of the tribunal and for their removal and inquiry against them, which was specifically barred by the Supreme Court in the Madras Bar Association's case and by the high court in Navdeep Singh's case.

Number of judge advocates to double in Philippines

The number of judge advocates in the Armed Forces of the Philippines is slated to double. According to this article, there are currently 96, and the AFP wishes to add another 94. Thirty-six have just been recruited.

Nigerian commission to review human rights, ROE compliance

The acting president of Nigeria has appointed a commission to look into the armed forces' compliance with human rights norms and rules of engagement. Details here.
The commission, according to a statement, issued by Bolaji Adebiyi, the Director, Press, Office of the Secretary to the Government of the Federation, is to be headed by a Justice of the Court of Appeal, Justice Biobele Georgewill, who is expected the submit its report to the Presidency in 90 days. 
The statement said by its terms of reference, the Commission was empowered to review extant rules of engagement applicable in the Armed Forces of Nigeria and extent of compliance thereto. 
According to Adebiyi, it is also empowered to investigate alleged acts of violation of international humanitarian and human rights law under the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Geneva Conventions Act, African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act and other relevant laws by Nigerian security agencies.

Saturday, August 5, 2017

Venezuelan public prosecutor opposes military court for civilian lawyer

The Venezuelan public prosecutor has submitted a request to the Caracas Court Martial asking that the military courts decline jurisdiction in the case against civilian lawyer Àngel Zerpa. The prosecutors note that he has committed no crime and in any event cannot be tried by a military court under the Constitution. Details here (in Spanish) from El Carobobeño.

Pakistan's military courts amendment and decision "a blunder"

“Parliament committed a blunder by allowing military courts, but the Supreme Court committed an even bigger blunder by allowing them on the pretext that [civilian] courts were not functioning properly. It is my suggestion to parliament that it should not allow 17 nominated individuals (judges) to amend the Constitution.”

Pakistani human rights lawyer Asma Jahangir,
quoted here in Dawn

UN human rights experts' statement on Venezuela's misuse of military courts (among other things)

The Office of the High Commissioner for Human Rights has issued the following press release:
The Government of Venezuela must stop systematically detaining protesters and end the growing use of military tribunals to try civilians, a group of United Nations human rights experts* has said.  
The authorities must also respect the rights of all demonstrators and detainees, and guarantee their physical and psychological wellbeing, the independent experts said. 
“We are very concerned about allegations of arbitrary detention, and excessive and indiscriminate use of force in the context of public protests, as well as the use of military tribunals to prosecute civilians,” they stressed.
“Such acts would openly violate people’s rights not to be arbitrarily deprived of their liberty, to receive due process and to be tried by a fair and impartial judge. In addition, they would constitute serious violations of people’s rights to freedom of peaceful assembly and of expression.” 
Since April 2017, thousands of people have been deprived of their liberty after taking part in protests. Many of them have been temporarily isolated, unable to communicate with relatives or lawyers before being presented before a judge. In other cases, people were released after discretionary decisions by the security forces. 
“The Venezuelan Government has an obligation to ensure that citizens are not arbitrarily deprived of their liberty, or penalized in any way, for expressing themselves and protesting in a peaceful manner. Protests must not be criminalized,” said the experts. 
“The Government should also ensure that detention records are made public and are available to family members.” 
The experts also called for the immediate release of opposition leaders Leopoldo López and Antonio Ledezma, recently moved from house arrest to detention centres, highlighting that the UN Working Group on Arbitrary Detention has held both Mr. Lopez and Mr. Ledezma’s detentions to be a violation of their rights.
The experts said the increasing use of military tribunals to try civilians was of particular concern. At least 400 protesters have been tried in this way, the vast majority of whom were deprived of their liberty after being found guilty of crimes in the military justice code, such as rebellion, treason and assault. 
“The use of military criminal justice should be strictly limited to cases where active military personnel commit military offences,” the experts underscored. 
“Military judicial bodies should, as a matter of principle, not be deemed competent to try civilians. Venezuela must ensure that civilians accused of criminal offences are tried by civilian courts.” [Emphasis added.]
They also expressed serious concern about allegations of excessive and indiscriminate use of force against demonstrators by state agents, and by so-called armed ‘collectives’ which have been accused of intimidation, assault, detentions and even causing protesters’ deaths.
The human rights experts noted that many detainees had told court hearings that they had suffered torture or cruel, inhuman and degrading treatment.
“We remind the Venezuelan Government of the absolute ban on torture and other cruel, inhuman or degrading treatment or punishment. These rules should govern the conduct of police and military forces at all times,” the experts said.
The UN experts have communicated their concerns to the Venezuelan authorities and requested clarifications on their compliance with international law.
* The experts: Mr. José Antonio Guevara Bermúdez, Chair--Rappourteur of the Working Group on Arbitrary Detention; Mr. David Kaye, Special Rappourteur on the promotion and protection of the right freedom of opinion and expression; Ms. Annalisa Ciampi, Special Rappourteur on the rights to freedom of peaceful assembly and of association; Mr. Diego García-Sayán, Special Rappourteur on the independence of judges and lawyers; Mr. Nils Melzer, Special Rappourteur on torture and other cruel, inhuman or degrading treatment or punishment. 

The Working Groups and Special Rapporteurs are part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system, is the general name of the Council’s independent fact-finding and monitoring mechanisms. Special Procedures mandate-holders are independent human rights experts appointed by the Human Rights Council to address either specific country situations or thematic issues in all parts of the world. They are not UN staff and are independent from any government or organization. They serve in their individual capacity and do not receive a salary for their work.

Friday, August 4, 2017

Standards for appellate review of sentences

The Court Martial Appeal Court of Canada has handed down its ruling in R. v. Hoekstra, 2017 CMAC 5, an appeal by the government on the ground that the sentence was too lenient. The unanimous decision, written by Justice Patrick Gleeson, usefully articulates the governing principles -- and increases the sentence from 60 days to 14 months' confinement, while staying the unserved portion. Excerpt:
[26] In this case, the sentencing reasons are devoid of any consideration of what might be an appropriate punishment or why the sentencing precedents placed before the Military Judge were neither applicable nor helpful in the sentencing process. In addressing the parity principle, the Military Judge did not adopt a different range or reject a range previously considered in the jurisprudence. Precedents were not considered. The absence of any reference to relevant precedents by the Military Judge, together with the substantial divergence from comparable sentences, invites a probing consideration of the fitness of the sentence. It opens the door to a potential finding that the sentence is demonstrably unfit.

Habeas granted in Colombia

El Tiempo reports that the Colombian Council of State has granted a writ of habeas corpus to a noncommissioned officer whose application for early release under the Final Peace Agreement (after 5 years of military confinement) had not been acted on by the Extraordinary Peace Court within the prescribed 10-day deadline. The court's secretariat argued that the deadline applies only to FARC members, and not to military personnel seeking to invoke the peace agreement. The Council of State rejected that contention:
"This office must vigorously reject the reasons given by the Executive Secretariat of the JEP, since under no consideration is the delay of a little more than four months in the resolution of a matter directly involving the exercise or enjoyment of a human right such as the benefit of transitional, conditioned and anticipated personal freedom under the terms of the Final Agreement and Law 1820 of 2016," the court document said. Thus, concluded the magistrate in resolving the case of [Sgt. Luis Angel] Reyes that all subjects, both guerrillas and agents of the State, who can obtain benefits derived from the Final Peace Agreement, have the right to have their legal situation be processed with the guarantee of reasonable time. [Google translation]

Another retiree to be court-martialed in Canada

Canada is court-martialing another military retiree, according to this report.
Master Warrant Officer (retired) Andrew Durnford faces five charges in alleged incidents stemming from his time serving on HMCS Toronto between January 2010 and September 2011. 
He is charged with two counts of sexual assault, assault, conduct to the prejudice of good order and discipline, and ill-treatment of a subordinate.
The exercise of military jurisdiction over retirees has been repeatedly condemned by the Inter-American Court of Human Rights.

ROK reviewing ban on homosexual conduct

The Korea Times reports that South Korea is reviewing its ban on homosexual conduct by military personnel under the impetus of a UN reporting requirement. Judging by the article, however, it's by no means clear that homosexual sex will be decriminalized:
The government is working on a human rights report it will submit to the United Nations that states, “We are reviewing the law so it will make the rules clearer for gay soldiers,” adding that not all gay soldiers will be punished for homosexual activity. The report will be submitted to the U.N. human rights body later this month.

Yet, it defended the law’s fundamental purpose: “In a given circumstance where only men stay together, the law is necessary to keep order. Punishment of gay soldiers also serves this purpose.” 
In May, the military court sentenced an Army captain to six months in prison, and suspended him for a year, for homosexual activity. According to the Military Criminal Act, sodomy can be punished with up to two years in prison. 
The conviction came amid a revelation that the military orchestrated efforts to hunt down gay soldiers and humiliate them openly, which rights activists called human rights violations. 
Rights violations for gay soldiers in Korea have been noted by other countries, which officially recommended that in 2012 Korea improve the situation during a U.N. peer review session. The national report is in response to that recommendation. 

Thursday, August 3, 2017

Trouble in the Urals?

Watch this TASS story:
Rumors of a massive drunken brawl involving melee weapons that were allegedly used at a military unit of the Central Military District in the Urals do not jibe with reality, the military district’s press service said in a news release. 
Earlier, the Ura.ru online resource reported that there had been a gigantic fight in Yelan, in the Sverdlovsk Region, involving more than 150 men. According to the information, the participants in the incident were intoxicated and used knives and shanks. The source claimed that 14 military servicemen were injured in the fray. 
"On August 2, there was a routine household quarrel between contract servicemen at a training center of the Central Military district that escalated into a fist-fight. Several servicemen and a junior officer who intervened to stop the fracas suffered light injuries and bruises," the press service said. 
"All military personnel underwent a medical exam that same day. No instances of alcohol abuse in the training center were identified. Rumors that cold steel objects were used in the clash is a complete lie," the military district said.
The command of the Central Military District and law enforcement agencies are pushing ahead with an investigation. 
"All officials accountable will be brought to justice," the military district warned.

Conduct to the prejudice: need there be proof of actual prejudice?

In an interesting decision, the Court Martial Appeal Court of Canada, on an appeal by the government, has held that the prosecution need not prove actual prejudice where the offense is conduct to the prejudice of good order and discipline. The case is R. v. Golzari, 2017 CMAC 3. Justice Richard Mosley wrote for a unanimous court:
[75] The military judge had also erred in applying the lesser standard when he took judicial notice of the effect of the accused’s remarks. At paragraph 11, the Court in Jones noted: 
The issue was whether, in the circumstances of this particular case, the appellant’s conduct did prejudice good order and discipline in that the remarks tended to bring a superior into contempt. 
[Emphasis in the original]. 
[76] However, a close reading of Jones demonstrates that the Court was careful to emphasize that prejudice need not be confined to a physical manifestation of injury to good order and discipline. At paragraph 7, the Court stated: 
Proof of prejudice can, of course, be inferred from the circumstances if the evidence clearly points to prejudice as a natural consequence of the proven act. The standard of proof is, however, proof beyond a reasonable doubt. 
[77] This language suggests that prejudice will be proven, beyond a reasonable doubt, so long as the totality of the circumstances supports the finding that the conduct in question would likely result in prejudice to good order and discipline. Since the Court in Jones left the window open to infer prejudice from the circumstances, I agree with the Appellant that “prejudice” encapsulates conduct that “tends to” or is “likely to” result in prejudice. 
[78] Prejudice in its ordinary grammatical sense means “harm or injury that results or may result” (Concise Oxford English Dictionary). The addition of the words “to the” before “prejudice” incorporates an element of risk or potential and the expression, read as a whole, does not require that harmful effects be established in every instance. Though evidence of actual harmful effects may exist, it is not required for conduct to be punished in the context of military discipline. Military discipline requires that conduct be punished if it carries a real risk of adverse effects on good order within the unit; this is more than a mere possibility of harm. If the conduct tends to or is likely to adversely affect discipline, then it is prejudicial to good order and discipline. 
[79] I also agree with the Appellant that in most instances, the trier of fact in a Court Martial should be able to determine whether the proven conduct is prejudicial to good order and discipline based on their experience and general service knowledge: Smith, above, at 164. 
[80] There may be cases beyond the scope of common military experience and knowledge where it will be necessary for the prosecution to tender evidence of specific circumstances which create the prejudice. That was not the case here. The effect of the military judge’s ruling was to impose a requirement for evidence of an order or direction that CAF members must cooperate with security guards when entering a base, even when that base is on high alert because of attacks on military personnel.
The judgment of acquittal was overturned and a new trial ordered before a different military judge. 

Canadian army retiree on trial for actions on active service

(Frédéric Pepin/Radio-Canada)
RDBewsnow reports that:
A reservist who allegedly made a racial slur towards a civilian kitchen worker and struck his superior officer is facing a court martial today in Nova Scotia.
Retired Cpl. Garett Rollman is pleading not guilty to two charges of "conduct to the prejudice of good order and discipline," and to the charge of striking a superior officer in February 2016, when he was still an active member, in Aldershot, N.S.
During opening statements, the defence asked for the case to be adjourned to give time to find Earl Smith, who the military defence lawyer said was the sergeant who Rollman allegedly struck.
The military prosecutor said Smith has left the military and he could not be located.
The trial proceeded regardless.  There is more robust reporting here and here.

I doubt there would have been a court-martial prosecution in the U. S. military for such an offense.  U.S. retired military personnel are subject to court-martial jurisdiction for offenses committed while on active duty.  But the practical and other administrative needs make it difficult to recall a retiree and proceed with such a case.  That said, there is currently one type of case where retirees are being considered for recall--military sexual assault.

Topsy-turvy

Bill C-15 - An Act to amend the National Act [NDA] which was enacted on June 19, 2013 provides for the creation of criminal record for an accused condemned for a range of disciplinary offences – such as s. 129 - Conduct to the Good Order and Discipline - IF, it is a big if, the sentence [see Scale of Punishments below] is higher that Severe Reprimand or if the Fine exceeds one month’s pay. 

This is a most unusual provision. Section 249.27 of the NDA (thankfully not yet in force)  allows for the generation of a criminal record NOT because of the objective gravity of the offence but because of the severity of the sentence.  As the French saying goes: "C'est le monde à l'envers!"

Scales of Punishments. Section 139 of the NDA provides for the following scale of punishments in descending order of severity;

     A. Imprisonment for life;
     B. Imprisonment for two years or more;
     C. Dismissal with Disgrace;
     D. Imprisonment for less than two years;
     E. Dismissal;
     F. Detention;
     G. Reduction in rank;
     H. Forfeiture of seniority
     I. Severe Reprimand;
     J. Reprimand
    K. Fine; and 
    L. Minor punishments

Another challenge to a military trial in Pakistan

The family of yet another civilian convicted by a Pakistani military court has sought relief in the Sindh High Court. According to this report from The News International:
The petitioner’s counsel argued that the judgment passed by the military court was not maintainable in the eyes of law because the accused should not have been in the custody of the military authorities and tried under the Pakistan Army (Amendment) Act (Act No II of 2015) or the Protection of Pakistan Act 2014, which now stood expired, as the petitioners did not belong to any terrorist organisation or group using the name of religion or sect, raise arms or wage a war against Pakistan, as decided by the joint investigation team. 
He said [Ali] Rehman was illegally tried and that too in the absence of a counsel, which was a violation of the constitution's Article 10-A. He said Rehman was not allowed to meet family or his lawyer and was not given record of proceedings of the military court to challenge the conviction.
The article does not indicate what sentence Mr. Rehman received. The authorities have been given two weeks to respond.