Thursday, November 20, 2014

New General Comment No. 35 issued by Human Rights Committee

The UN Human Rights Committee has issued General Comment No. 35, offering its revised gloss on article 9 of the International Covenant on Civil and Political Rights, which concerns liberty and security of the person. Military justice scholars and practitioners will want to give this a close reading, as it refers in a number of places to military justice and related matters. The document replaces General Comment No. 8, issued in 1982. Thanks to Just Security for calling attention to and offering analysis of General Comment No. 35.

An example of the military references appears in n.84:
The requirement of being informed about any charges applies to detention for possible military prosecution, regardless of whether the trial of the detainee by a military court would be prohibited by article 14 of the Covenant. 1649/2007, El Abani v. Algeria, paras. 7.6, 7.8.
Another is n.141, which cites para. 9.6 of Vuolanne v. Finland for the proposition that a superior military officer's review of a detention decision is insufficient. The accompanying text reads:
Paragraph 4 entitles the individual to take proceedings before “a court,” which should ordinarily be a court within the judiciary. Exceptionally, for some forms of detention, legislation may provide for proceedings before a specialized tribunal, which must be established by law, and must either be independent of the executive and legislative branches or must enjoy judicial independence in deciding legal matters in proceedings that are judicial in nature.

A busy day at the general court-martial at Makindye

This vivid, well-written report from The Observer describes a busy calendar at the Uganda Peoples' Defence Force general court-martial:
The UPDF General Court martial (GCM) at Makindye has banned the use of mobile phones and iPads during court sessions.
The ban, announced on Wednesday by GCM Chairman Maj Gen Levi Karuhanga, stemmed from a complaint by lawyer Ladislaus Rwakafuuzi – that soldiers checking those coming to court refused him to enter with an iPad he uses in writing notes. Rwakafuuzi’s plea that using paper and pen was becoming outdated proved counterproductive.
“Because of security reasons, nobody, including me, my court members, lawyers, suspects, court goers or journalists are allowed to come in court with iPads or mobile phones. As a lawyer, you must know the danger of bomb use regarding these gadgets,” Maj Gen Karuhanga said.
However, journalists will be allowed to enter with their recording gadgets, provided they are thoroughly checked.
Smiling convict
In the same Wednesday session, Maj Jamil Seguya, formerly the maintenance officer of “soft skin” vehicles at the African Union Mission in Somalia (Amison) in Mogadishu left smiling after court convicted him to a caution sentence. Caution, which attracts light sentence, is a punitive measure under the UPDF Act, which is given to either first offenders or those who don’t waste court’s time to enable them reform.
The caution sentence came as a result of his change of plea from “not guilty” to “guilty.”
Prosecution, led by Maj Fredrick Kandwamu, accused Seguya, 46, of failing to service a caterpillar donated to Amison by the US government between in December 2012, resulting in the breakdown of the equipment. When asked by the judge advocate, Lt Col Gidion Katinda, where he was going to serve his sentence from, the bemused Seguya, who has been on remand, replied that he would serve it at his residence, sending court into wild laughter.
Court also freed junior officer David Ojok, previously the platoon commander in 31st infantry battalion, located 50km from Mogadishu, on appeal. In May 2009 Ojok was convicted by a Unit Disciplinary Committee (UDC) for  failure to protect war material, leading to loss of 1,000 live ammunitions and sentenced him to five years.
Karuhanga, in his judgment, blamed the UDC for entertaining this case which was capital in nature and can only be tried by the General Court Martial. On conviction, one is liable to either serve a life imprisonment sentence or suffers death.
“Much as the [UDC] may be fair, once it has no jurisdiction over a case, its outcome becomes illegal. In the premises, we quash the conviction, set aside sentence, including the period served, and set the appellant free.”
Very nice reporting by Siraje Lubwama and Derick Kiyonga.

Nuremberg today

Goering and Hess Are Sentenced for War Crimes
Sentencing proceeds
Image result for nuremberg trialsImage result for nuremberg trials

If memory is correct, today 20 November is the anniversary of the major Nuremberg trials commencing.

There are quite a few sources and sites on The Internets that provide a wealth of data on the social and legal history of these trials.  A short review may be found at the U.S. State Department website, also with reference to the Tokyo War Crimes trials.

The history channel tells us that:
There were many legal and procedural difficulties to overcome in setting up the Nuremberg trials. First, there was no precedent for an international trial of war criminals. There were earlier instances of prosecution for war crimes, such as the execution of Confederate army officer Henry Wirz (1823-65) for his maltreatment of Union prisoners of war during the American Civil War (1861-65); and the courts-martial held by Turkey in 1919-20 to punish those responsible for the Armenian genocide of 1915-16. However, these were trials conducted according to the laws of a single nation rather than, as in the case of the Nuremberg trials, a group of four powers (France, Britain, the Soviet Union and the U.S.) with different legal traditions and practices.
The Allies eventually established the laws and procedures for the Nuremberg trials with the London Charter of the International Military Tribunal (IMT), issued on August 8, 1945.
The University of Missouri--Kansas City has an interesting collection, as do others.  More lawyerly information can be found at the U.S. Library of Congress site.

ECtHR decision handed down in Jaloud case

Delivering Jaloud
The Grand Chamber of the European Court of Human Rights has issued a decision in Jaloud v. The Netherlands (Application no. 47708/08).

The case arose from a shooting death in 2004 at a checkpoint in Iraq being conducted by Dutch and Iraqi Civil Defense Force personnel.  A local national was shot and killed.  An investigation was conducted.  Contrary to the family's desires the investigation did not result in the prosecution of any Dutch personnel, who it appears claimed self-defense in firing at the car with Mr. Jaloud as a passenger.  The court found jurisdiction under the European Convention on Human Rights for various claims and specifically a violation of Article 2, which is the right to life provision.

For those interested, you can see and hear announcement of the decision at this link.

Wednesday, November 19, 2014

OHCHR expert consultation in Geneva

On November 24, 2014, the Office of the High Commissioner for Human Rights is conducting an expert consultation on the administration of justice through military tribunals in Room XIX of the Palais des Nations in Geneva. Further information can be found here.