Tuesday, September 30, 2014

A stray suggestion to the Military Justice Review Group

Since the Pentagon's Military Justice Review Group website does not show comments and suggestions that the group receives, here is one your humble editor has just submitted:
Given the maturation of the court-martial trial process, including development of the role of the military judge, shouldn’t review by the Courts of Criminal Appeals be governed by the same standards as apply to appellate review of trials of criminal cases in the district courts? The last sentence of Article 66(c) seems to be another of the artifacts in the Code that have been overtaken by events and can now be dispensed with.
Have you submitted something? If so, please post it here using the Comment feature. 

Government urges closed hearing on force-feeding at Guantanamo

The government is urging the military judge presiding over a military commission at Guantanamo to close a hearing about force-feeding of an accused. According to this report in Air Force Times:
In the administration’s court filing, the Justice Department said that opening the hearing would require “closely monitoring every question to and every answer from each witness” to ensure that no classified information is released. The Justice Department proposed that the participants present unclassified opening statements that would be open to the public. In addition, the government said it would create a public version of the transcript of the hearing on a speeded-up basis.
The former Navy commander at Guantanamo Bay, Rear Admiral Richard Butler, said in a court declaration filed in July that even though the forced cell extraction videos are lawful, humane and appropriate, they “are particularly susceptible to use as propaganda and to incite a public reaction because of their depiction of forcible … guard interaction with detainees.”
The videos that also contain footage of forced-feedings could be used “to foment anti-American sentiment and inflame Muslim sensitivities as it depicts … personnel providing medical care to a detainee while he is restrained,” Butler said in the declaration.
Releasing a video showing a detainee receiving medical care while restrained “would exacerbate the world’s perception of detainees in U.S. custody,” Butler added. “Public release, in whole or in part, of videos showing forced cell extractions” or feedings would cause “serious damage to national security.”

UN experts oppose Colombian military justice bill

A group of UN experts has gone on record as opposing the current military justice bill under consideration by the Colombian Congress:
. . . Bill No. 85 would give military courts extensive jurisdiction covering, among others, homicide, breaches of international humanitarian law, breaches of information and data protection, crimes against public security and other crimes that should fall within the jurisdiction of ordinary criminal courts.
“We call on the Government to ensure that the jurisdiction of military tribunals be limited to criminal offences and breaches of discipline of a strictly military nature and allegedly committed by active members of the armed forces,” the experts said.
“Crimes amounting to serious human rights violations should always fall within the jurisdiction of ordinary courts, including when the alleged acts were committed by military or police personnel,” they underscored.
Since military courts in Colombia are part of the executive branch, extending their jurisdiction to matters that should be heard by ordinary criminal courts would exacerbate the problems and concerns already existing in terms of access to justice, impunity for human rights violations, and respect for the fair trial and due process guarantees of the accused, it was noted.
The experts, who are appointed by the UN Human Rights Council and carry out their mandates in an unpaid capacity, offered their advisory services to assist Colombia in its efforts to strengthen its legislative and institutional framework for the achievement of human rights and peace for all.

Monday, September 29, 2014

Does law have a place in China's military and national defense reforms?

Does law have a place in China's military and national defense reforms?  The answer to that, according to recent publications by China's top military legal officials, the Legislative Affairs Bureau  (Office) of the Central Military Commission (linked here (in Chinese)) and Col. Shi Qingren, a researcher at China's Academy of Military Sciences (linked here)(in English), is yes.

According to Col. Shi, foreign researchers haven't been paying much attention to China's military reform, which means that fewer are paying attention to the military legal reforms (except for the regular readers of this blog). Col. Shi tells us that improving the military legal system is an important aspect of bringing China's military policies and mechanisms into the modern age. 

The Legislative Affairs Bureau officials gives us a glimpse into some of their thinking, echoing some of the points made by their head in November 2013:
  • strategic reforms need a legal basis, they must be done according to legal procedures, methods, and authorization;
  • Improvements to legislation need to go together with strategic reforms;
  • To prevent conflicts between current legislation and military reforms, legislation needs to be amended simultaneously.
  • The legislative framework needs to break out of its current restrictions.
  • Better planning and arrangements for military legislation are needed.
  • In particular, instead of narrowly amending a few provisions, an entire body of legislation needs to be overhauled.
  • Expert review, more consultation, and better channels are needed.
  • Legislative drafting needs to be pulled out of departments, to avoid the legalization of departmental interests.
  • Military legislation needs to be better coordinated with civilian legislation
The Chinese leadership meets in October, for the Fourth Plenum of the 18th Chinese Communist Party Central Committee, to focus on the rule of law.  It is likely that some broad principles for military legal reform will be laid down, but this prediction with be (dis)proved by events.

South African Defence Review 2014

The 2014 South African Defence Review is now available online. Chapter 12 deals with military discipline. Echoing a point made in last year's edition and the one before that, the 2014 version asserts:
[C]hallenges arising from the application of the Military Discipline Supplementary Measures Act and limited training thereon have led to perceptions that military discipline has been compromised and the authority of Commanders eroded. The current system has specifically disempowered commanders by removing the summary discipline system away from the commander to the military courts.