Wednesday, April 23, 2014

Judicial independence at Guantanamo

Col. James L. Pohl
Guantanamo Military Judge
Query: does a judge in a military court meet the test for independence under Article 14(1) of the International Covenant on Civil and Political Rights, to which the U.S. is a party, if he is recalled from retirement for brief renewable periods? This seems to be one of the many issues currently engulfing the military commission sitting at Guantanamo Bay, Cuba.


  1. In examining the terms of art 14(1) "...In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.... " there is a close similarity to the provisions of article 6(1) ECHR: "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...."

    The post poses an interesting question and one that was fundamental to the changes to the UK court martial system, namely, the fairness of trial by court martial. Or, more correctly, as Findlay -v- UK put it, in §73, "As to the question of "impartiality", there are two aspects to this requirement. First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect."
    §76: "In order to maintain confidence in the independence and impartiality of the court, appearances may be of importance. "

    In Morris-v-UK, the court recalled its own case-law which illustrated that a military court can, in principle, constitute an "independent and impartial tribunal" for the purposes of Article 6 § 1 of the Convention. However, certain safeguards had to be in place. In Findlay, the court found that the structural defects in the system (Chain of Command involvement) were so profound that they were not rectified even by the presence of a civilian judge advocate.

    While trials by UK Army and Air Force courts martial were presided over by civilian judge advocates, the Royal Navy used uniformed lawyers to perform this office. However, this came to an end in R-v-Dundon [2004], when the Court Martial Appeal Court took into account the ECtHR Grand Chamber decision in Grieves -v- United Kingdom [2003] and held that trial by uniformed judge advocate breached article 6 of the ECHR. It found that the absence of a civilian judge advocate in itself was sufficient to conclude as to the lack of independence of naval courts-martial, due to the pivotal role played. Since then, all trials by court martial are presided over by civilian judge advocates.

    It is interesting to note that there was no doubt as to the professional competence of the uniformed judges in the Royal Navy. Similarly, one reads of the independent decisions made by Colonel Pohl - a recent one of which was in the Sinclair case.

    The position with former military judges being recalled for service is even more interesting. Some of the UK's judge advocates are former legal officers, but their appointment as a judge advocate is independently made by the Lord Chancellor. Hence, when they preside over a court martial trial, they are truly independent from the chain of command. This is on contrast to the recalled military judge who once more becomes part of the armed Service. It is difficult to see how there is any difference between their position, temporary though it may be, and that of a regular military judge, if there is the possibility of command chain influence - or the perception that this is possible.

    So, I would have to answer the question posed in the negative.

    One final thought occurs to me: there is clearly a potential argument that all military judges are non-compliant. So, in order to retain the valuable expertise of military judges like Colonel Pohl, and to remove the perception of command chain influence, would it be possible for judges of one Service to only try cases involving members of the other Services, of whose command chain they were independent? With the size of US forces, this could work.

    1. Yes, but . . . such a judge would still be on too short a leash to be independent: one-year is not enough, and renewability raises additional issues. Note that recalled officers receive full pay and allowances; unrecalled retirees receive only their retired pay so they stand to get hit in the pocketbook if their recall is ended.

  2. Agreed. Perhaps the Dundon point says it all. However, I do think that there are ways of using military judges that do not impact the impartiality of proceedings. Getting their appointment process right and terms of service are clearly important, but resolving the Service jurisdiction they exercise by limiting it to cases of the other services may help.

  3. In Leblanc v. Her Majesty The Queen 2011 CMAC 2, The Court Martial Appeal Court of Canada put an end to renewable terms of appointment of military judges on the basis that they lack security of tenure which is an essential component judicial in dependence in Canada. Military judges were the only judges in Canada who, without security of tenure, could try criminal charges and, until 1998, should sentence the accused to the death penalty when it had bee abolished for civilians.

    At par. 53 and 54 of its reasons for decision, the Court wrote:

    [53] I would add the following: An accused person who is tried before a military tribunal, even for an offence as serious as murder, does not have the right to a trial by jury. This possibility is denied under paragraph 11(f) of the Charter in the case of an offence where the maximum punishment for the offence is imprisonment for five years or more or a more severe punishment.

    [54] In such a context, the accused person's right to a hearing by an independent and impartial tribunal, guaranteed under paragraph 11(d) of the Charter, takes on its full significance and becomes of paramount importance. Before a General Court Martial composed of a panel of members of the chain of command, the accused, who will be led from the hearing room in handcuffs to serve a life sentence without the possibility of parole for 20 or 25 years, must have the assurance, indeed the firm conviction, that the presiding military judge enjoyed the security of tenure necessary to ensure the fairness of the proceedings he or she has been subject to. The accused person must also be able to be confident that the sentence he or she received was imposed by a military judge who enjoys the constitutional protection required to ensure the legitimacy of the sentence. I do not believe that five-year renewable terms for military judges provide the necessary constitutional protection, especially if you consider the added fact that it was considered necessary to give such protection to civilian judges exercising the same functions.

    The military judges were finally given by legislation security of tenure and now hold office during good behaviour until their retirement age fixed at the age of 60.


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