Friday, November 16, 2018

Sham proceedings

Reema Omer of the International Commission of Jurists has written this disturbing summary for The Statesman concerning the October decision of the Peshawar High Court overturning the military court convictions of  more than 70 civilians. The decision itself, which has been stayed by the Supreme Court of Pakistan, is not yet available on the High Court's website. Excerpt from Ms. Omer's analysis:
[T]he court questioned the competence of the defence counsel of the accused. Under the Army Act, accused persons have the right to engage private civilian defence counsel at their expense. The court found it odd that only one lawyer from Punjab was engaged by all accused persons. And even though families of a number of convicts had engaged “costly and senior counsel” to challenge their convictions in review before the high court, during their trials they had allegedly “consented” to be represented by the same defence counsel with only five or six years’ experience.

It also expressed concern that it was not clear in what language the counsel communicated with the accused, and whether they were allowed to consult with him confidentially.

It characterised the defence counsel as a “dummy”, and held that the trials were a “complete prosecution show”, where the accused were “denied of their legal and fundamental right” to engage counsels of their choice and present a defence.
On facts like these, it is not hard to see why the High Court took the action it did. 

Wednesday, November 14, 2018

Congolese military justice and the 2018 Nobel Peace Prize

The 2018 Nobel Peace Prize award to Dr. Denis Mukwege (DR Congo) and Nadia Murad (Iraq) brings the entire world’s attention to sexual violence in armed conflict.  Prof. Helen Durham brilliantly sums up the development of international mechanisms for holding perpetrators accountable in her October 11, 2018 ICRC Humanitarian Law and Policy blog post.

Therein, she aptly notes that “..whilst the impact of the jurisprudence of international courts and tribunals on this issue has been significant, domestic systems are critical to any discussion of accountability, and States must ensure that it is possible to investigate, prosecute and punish wartime sexual violence under their domestic law.”  (Emphasis in original, footnote omitted.)

In this regard, Dr. Mukwege recently praised the strides made by the Congolese military justice system.  See “Lutte contre les violences sexuelles: Dr Mukwege félicite la justice militaire”, Radio Okapi, 5 September 2018.

Only in February 2016, nearly 14 years after its ratification by the DR Congo in April 2002, was the Rome Statute domesticated by amendments to the Congolese Penal Code.  However, domestic prosecution of these most grievous of crimes was not delayed, thanks to the bold initiative of Congolese military magistrates to apply the Rome Statute directly in courts-martial via the DR Congo Constitution’s supremacy clause.  By prosecuting and obtaining convictions in Congolese courts on charges brought directly under the Rome Statute’s substantive provisions, Congolese military magistrates actuated the principle of ICC complementarity to domestic systems, and have spawned a body of domestic Congolese jurisprudence. 

The development of this law is thematically chronicled by Professor Jacques B. Mbokani of the University of Goma, in his study Congolese Jurisprudence under International Criminal Law: An Analysis of Congolese Military Court Decisions Applying the Rome Statute (Johannesburg: Open Society Initiative for Southern Africa, and African Minds, 2016 (French original) and 2017 (English translation)), and his recent follow-on La Jurisprudence congolaise relative aux Crimes de Droit international 2016-2018 (Kinshasa: Club des amis du droit du Congo, 2018 (discussing cases brought since domestication of the Rome Statute)).

A testament to Congolese military justice’s international leadership in actuating ICC complementarity by domestically implementing International Criminal Law, including the repression of sexual violence in armed conflict, is the fact that one of its senior magistrates was selected as the inaugural Chief Prosecutor for the Special Criminal Court for the Central African Republic.

In the mixed post- and ongoing conflict environment of the DRC, military justice is crucial to the Congolese justice sector writ-large.  The lion’s share of overall criminal jurisdiction lies in military courts: they have unique personal jurisdiction over not only the armed forces, but also over all “forces of order” including the police; as well as subject matter jurisdiction over any crime committed with a “weapon of war”, meaning any firearm.  Only since 2013 has legislation been adopted to begin sharing jurisdiction over Rome Statute-defined crimes with civilian courts, and the civilian criminal justice sector looks to the military for guidance, training and precedent in exercising its newly acquired concurrent jurisdiction.

Though the gains realized by Congolese military justice these past 10+ years have been great, continued support from the international community remains critical as the Congolese continue to build a foundation for their criminal justice system throughout the vast territory of the DRC, in order to ensure enduring accountability for the most grievous of crimes, including wartime sexual violence.

David A. Buzard, Esq.
Norfolk Virginia | Kinshasa DR Congo

New contributor

Global Military Justice Reform is delighted to welcome its newest contributor, David A. Buzard. Watch for his posts!

Tuesday, November 13, 2018

Bots R Us

It's Bot City this morning here in the glass-enclosed newsroom high above Global Military Justice Reform Plaza: 135 hits from Malaysia in the last two hours.

Beaudry fallout

The government has asked the Supreme Court of Canada to stay the recent decision of the Court Martial Appeal Court in the Beaudry case. The motion remains under consideration, but in the meantime charges in two cases have been withdrawn from the court-martial without prejudice. David Pugliese reports on the matter here for the Ottawa Citizen. No word on the other 38 cases that the government says could be affected by Beaudry.

The charge in one of the two dropped cases dates to 1999.