Tuesday, June 27, 2017

War crimes v. crimes against humanity v. murder

How important is it to pursue charges of crimes against humanity or war crimes charges as opposed to simply pressing murder charges? The UN has objected to the abandonment of the first two in favor of the third in a Democratic Republic of Congo court-martial. According to this account:
"We regret" the tribunal's decision, Jose Maria Aranaz, director of the United Nations joint human rights office (UNJHRO) and representative of the High Commissioner for Human Rights in the DRC, told AFP. 
"Prosecuting these crimes is a way of preventing other legal violations and further excessive use of force by the armed forces," Aranaz said. 
The seven soldiers were on trial for war crimes and other offences -- including murder, mutilation and cruel, inhumane and degrading treatment -- apparently committed in the Kasai region. 
They are being prosecuted after a video emerged in February showing a group of uniformed men opening fire on civilians, then walking among at least 20 bodies. 
The alleged incident occurred during an operation in a village called Mwanza Lomba in Kasai, according to the government. 
On Saturday prosecutors in the trial, which began on June 5, dropped the war crimes charges but kept the murder charge and others. 
"You can justify dropping the war crimes charges because there is no declared conflict in the Kasai," Aranaz said. 
But it would have been important to prosecute the officers for crimes against humanity because it would send "a strong signal in the direction of those who are implicated in the violence in Kasai." 
Spiralling unrest 
An attorney at the trial, Jimmy Bashile, told AFP that military prosecutors, pressing charges of murder against five of the accused, on Monday sought jail terms of life or 20 years against two majors, a captain, lieutenant and a sergeant-major. 
They also called for a 10-year term against a sergeant-major for failing to denounce the crimes and a 12-month suspended term against another non-commissioned officer for handling images sent to him by one of the accused.

Monday, June 26, 2017

A look inside Venezuela's military courts

Americas Quarterly has this vivid story about the use of military courts to try civilians in Venezuela. Excerpt:
This has grave consequences for defendants. Lawyers familiar with Venezuela’s military court system say that it operates under different rules than civilian courts, and puts detainees at a clear disadvantage. For a start, the judges are military officers picked by the Ministry of Defense, and so depend on the executive branch for their jobs. The prosecutors tend to be officers of lower military rank than the judges, and are therefore unlikely to feel free to make independent decisions, said Ali Daniels, a legal expert at the Venezuelan NGO Acceso a la Justicia
Private lawyers are allowed to represent detainees, but they’re often denied access to police depositions, which are the basis for accusations against their clients. When they can see depositions, they are not allowed to get copies of them. 
“It's a form of intimidation,” Daniels said. “They try to make every step so hard that you eventually want to give up.” 
In many cases, the government has done little to present its legal case against demonstrators. In [Carlos] Ramírez’s case, the military judge granted the prosecution 45 more days to find additional evidence. The defense, however, is hamstrung, since they don’t know the exact contents of the testimony they are challenging. The declaration read at Ramírez’s hearing has not been made public or available to his lawyers, said Pedro Troconez, one of the lawyers from Barquisimeto, who later filed a complaint to be allowed onto Ramírez’s case.

New rules in India may affect independence and quality of Armed Forces Tribunal

The Government of India recently issued The Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017. These rules affect a variety of tribunals, including the Armed Forces Tribunal, which has appellate review power over courts-martial and other military personnel matters. Global Military Justice Reform contributor Wing Cdr. (ret) UC Jha has written this analysis for DNA India:
On June 1, 2017, the Ministry of Finance notified The Tribunal, Appellate Tribunal, Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017 in the Gazette of India. The Rules, effective from June 1, have amended 19 existing laws, including the Armed Forces Tribunal (AFT) Act, giving wide-ranging powers to the government pertaining to the appointment and removal of members to various tribunals. In the past, the government used to appoint departmental Standing Committees and invite comments from the public before notifying such rules into the law. For instance, AFT Bills of 2005 and 2012 were examined by the Parliamentary Standing Committee on Defence. 
Chairperson and members 
In contrast to earlier provisions in the AFT Act, where only a retired judge of the Supreme Court or a retired chief justice of a High Court could be appointed as Chairperson, now a serving judge or any person “who is qualified to be a judge of Supreme Court” could be appointed as the Chairperson of the Tribunal. There is no change in the qualification of a judicial member and a serving or retired judge of a High Court could be appointed as such. 
As far as the AFT’s administrative members are concerned, so far the appointment was confined to retired major generals or equivalent ranks in two other services and retired advocate generals. The Rules of 2017 now provide that any person “of ability, integrity and standing having special knowledge of, and professional experience of not less than 20 years in, economics, business, commerce, law, finance, accountancy, management, industry, public affairs, administration or in any other matter which in the opinion of the Central Government, is useful to the Armed Forces Tribunal” could be appointed. The amended law does not require a member to have any expertise in law or military ethos. This dilution of membership of an important appellate tribunal appears unjustified. 
Search-cum-Selection Committee 
Under the Rules of 2017, the chairperson of the AFT shall be appointed by the central government in consultation with the Chief Justice of India. Earlier, the Chairperson and other members (judicial and administrative) of the AFT could be appointed only by the President, after consultation with the Chief Justice of India. The posts of Vice-Chairperson and judicial and administrative members of the Tribunal will now be filled by a “Search-cum-Selection Committee” which shall consist of the Chairman and three members. The four-member Search-cum-Selection Committee will consist of one Supreme Court judge (nominated by the Chief Justice of India), Chairperson of the AFT (appointed by the government), the Defence Secretary and another executive; thus giving a majority say to the government in selection of members for the AFT. In addition, the criteria for the removal of members have been diluted and the Ministry of Defence will have the power to constitute a committee to recommend removal of a member. 
The Supreme Court has earlier made it clear that the selection committee for appointments to tribunals should be balanced with members from the judiciary and the executive, rather than loaded in favour of the latter. A Constitution Bench of the SC, in the case of Madras Bar Association v. Union of India (2010), had struck down provisions related to the National Company Law Tribunal because the five-member selection committee had only one member from the judiciary while the rest were from the executive. The Rules of 2017 have amended laws to open the doors for the government to usurp powers pertaining to the appointment and removal of members of the AFT. The amendments introduced by the Rules of 2017 appear unconstitutional. 
The armed forces have an independent legal system. By virtue of section 152 of the Army Act, trial by a court martial is a judicial proceeding and court martial is a court within the meaning of Criminal Procedure Code. The power of judicial review over the military legal system must be exercised by independent, impartial and qualified persons, maintaining the standards of a High Court.
Passing over the strange -- to American eyes -- procedure under which the executive branch may amend legislation, it does appear that the 2017 Rules have the effect of eroding the quality and independence of the AFT bench. Of course there are fundamental questions surrounding the AFT more generally, such as why non lawyers, whatever their other credentials, should be voting members in the first place of what is, after all, a court of law. Issuance of the 2017 Rules without prior opportunity for public comment also seems a bad business, and Wing Cdr. Jha is quite right to point it out. Readers in India are invited to comment on the constitutionality of the new rules. Will Madras Bar doom them, as he predicts? (Please comment under your real name.)

Sunday, June 25, 2017

Consent is not enough

President Miriam Naor
Supreme Court of Israel
The High Court of Justice in Jerusalem has rejected a government appeal seeking to overturn a ruling concerning the power of military officials to conduct consent searches of soldiers' telephones unless they have a warrant. The Jerusalem Post has the story. Excerpt:
The High Court of Justice rejected a military prosecution appeal on Monday that sought to overturn a previous court ruling barring warrantless searches of soldiers’ cellphones. 
The decision led by the court’s president Miriam Naor did not take a stance on the military prosecution’s argument – that only a soldier’s consent is needed to search his or her cellphone, not a warrant.
However, Naor said that legislation should be considered, not an appeal in the courts, if warrantless searches are necessary. 
The High Court said that a previous ruling by a military court of appeals in November 2016 stands. The decision requires the military police to obtain a warrant to search soldiers phones, even if the soldier consents to the search.
“The fundamental question before us is whether the consent of the suspect is adequate in order to authorize investigators to search a mobile phone – this question will remain theoretical and will not affect the outcome of the procedure,” the court’s decision said.

Kings Point and sexual misconduct

Newsday, the Long Island newspaper, has this report on steps being taken to deal with sexual misconduct at the U.S. Merchant Marine Academy. Cadets at Kings Point are not subject to the Uniform Code of Military Justice, but the issues that can arise replicate those at the other service academies. MMA is located in the Department of Transportation's Maritime Administration. Excerpt from the article:
After Newsday’s inquiries about reforms to the sexual assault response program, academy officials said last week that the school is in the process of hiring a Special Victims Counsel.
The 74-year-old school, which comes under the U.S. Department of Transportation, does not conform to the Uniform Code of Military Justice, the rules and regulations that define the justice systems at the academies for the Army, Navy, Air Force and Coast Guard. That has put USMMA in a unique position, potentially hampering efforts to improve the reporting and judicial process for assault victims on the Kings Point campus, lawmakers and advocates said. 
USMMA, with its accreditation placed on warning by the Middle States Commission on Higher Education in June 2016, is under increased scrutiny to address its efforts to prevent sexual assault and sexual harassment, as well as to correct weaknesses in governance and leadership. The commission’s decision on whether the academy’s leaders have done enough to return to good standing is expected later this week. 
Changing the Merchant Marine student culture from one that blames the victim to one that advocates for the victim was among the recommendations in an independent study released in January by Logistics Management Institute of Virginia. The 138-page audit, commissioned by the Transportation Department, described victims’ lack of trust in the system and noted that the absence of independent legal counsel for victims worked to “hinder the effectiveness of the Academy’s response to sexual assault.” 
Among other reforms the academy should undertake, the report said, were creating a policy that prohibits retaliation and ostracism; establishing a 24-hour helpline for confidential reporting of sexual assault, both on campus and during the intensive Sea Year training program, modeled on the helpline used by the other service academies; and setting up a forum for victims to exchange information with leadership and other victims.