|Court of Cassation of Italy|
Editor's note: thanks to Global Military Justice Reform contributor Phil Cave for the link to the Court of Cassation's decision.
|Court of Cassation of Italy|
[The h]ead of Somalia's military court Colonel Abdirahman Mohamed Turyare met with a delegation from the United Nations Assistance Mission in Somalia (UNSOM) Wednesday (May 28th) to discuss human rights and justice issues, Somalia's Goobjoog News reported.
UNSOM's Chief of Joint Justice and Corrections Section Mitch Dufresne urged the court to conduct fair proceedings in its trials, while Turyare asked Dufresne to consider the court's unique position in prosecuting al-Shabaab militants when evaluating its performance.
He called on the United Nations to refrain from criticising the military courts as they work towards combating al-Shabaab in the country.
|Pres. Maria Elizabeth Rocha|
The Superior Tribunal Militar (STM) will be headed by a woman for the first time in its 206-year history. On Wednesday, May 28, Ministra Maria Elizabeth Rocha was confirmed as the court's next president. Her investiture will take place on June 16.
She succeeds Army General Raymundo Nonato de Cerqueira Filho, who retires on June 11, before completing his two-year term. Ministra Rocha is currently the court's vice president, and will serve until March 2015, completing the term of her predecessor, who took office in March 2013.
The court's presidency rotates between civilian ministers and those from the Navy, Army, and Air Force.
Nominated by former Brazilian President Luiz Inácio Lula da Silva, Ministra Rocha took office in 2007. She has a Ph.D. in Constitutional Law from the Law School of the Federal University of Minas Gerais.
|Pres. Ziaur Rahman|
MJ [COL POHL]: I notice in your reply, there is no authority cited one way or the other. Is there any authority for me to order another branch of the government to release information?
TC [CDR LOCKHART]: There is no authority for you to order another branch of the government to release the report. You certainly have other options available. . . .LINK, at page 4375
Separately Wednesday, defense lawyers asked Pohl to get them a copy of the entire Senate Intelligence Committee’s “Torture Report.” It details not only Nashiri’s treatment in CIA custody but describes interrogations of other captives that might implicate their client.Link to Miami Herald article
Read more here: http://www.miamiherald.com/2014/05/28/4142699_guantanamo-war-court-opens-in.html#storylink=cpy
|Ex-Minister Michel Samaha|
|Ex-Minister Chaturon Chaisaeng|
|Michel W. Drapeau|
|Supreme Court of Colombia|
The May 25 order grants the military wide-ranging powers to prosecute civilians without basic due process protections, and prohibits defense counsel and rights to appeal.
The trial scheduled for later this week of detained former Education Minister Chaturon Chaisaeng and other civilians charged by the military junta should be heard in regular courts. Chaturon would be the first civilian put on trial in a military court in Thailand in decades. Chaturon has been denied access to legal counsel.
“The military trial of a civilian without a lawyer or means to prepare a defense is really no trial at all, but a travesty of justice,” said Brad Adams, Asia director. “The Thai junta should immediately end its arrests of peaceful critics and revoke its order allowing the trial of civilians before military courts.”
Because the IDF, like most armies, bars its soldiers from expressing personal opinions on contentious matters while in uniform, they covered their faces with homemade signs. Most of these contained the exact same slogan: “I also stand with David [Adamov] the Nachlawi,” the latter being a reference to the Nachal, Adamov’s brigade. Within days, the number of active duty soldiers and officers standing with Adamov was in the thousands, and a Facebook page set up to aggregate all these outbursts of support registered more than 133,000 likes, a huge number by local standards. . . .
|Colonel (ret) Michael W. Drapeau|
"In this case, Wilson was facing civilian charges in multiple counties — Terrell and Houston counties — in Georgia," said David Donato, a Robins [Air Force Base] spokesman. "A court-martial is able to resolve all of the charges against the accused, no matter where they allegedly occurred. Additionally, the family of Ms. Ferguson supported the Air Force taking jurisdiction of the murder charges," Donato said in an email.Was there no way to try all the charges in a single civilian trial? (Help us on this, readers in Georgia.) Are administrative convenience and the druthers of a victim's family reason to deny a member of the service the full protection of the Bill of Rights?
|Justice Hannah Okwengu|
Justices Hannah Okwengu, Milton Asige Makhandia and Fatuma Sichale halted the release of the ex-soldiers after finding [Kenya Defence Forces] had an arguable appeal against the orders, which the High Court gave on April 30 and May 2.
The judges ordered chief of defence forces General Julius Karangi to file his appeal within 30 days after he and others sued by the soldiers were granted stay of execution of the High orders to have the soldiers released pending hearing and determination of their case.
But after the judgment was given, lawyer Daniel Kamunda applied for court proceedings to move to the Supreme Court because he had instruction [to] appeal against the decision.
“My clients are disappointed by the ruling and have decided to move to the Supreme Court to challenge the Court of Appeal decision,” said Kamunda.
“By virtue that KDF is claiming these people are still service members there is presumption they are service members subject to court martial proceedings,” said the judges.
“None of the defendants confessed to the charges, and not one has negotiated a settlement with the Hung family, meaning they have shown no remorse,” Taiwan High Court Prosecutor Hsu Yung-chin told the court.
Hsu added that the evidence shows that the defendants “abused and tortured a serviceman for fun.”
The 24-year-old Hung collapsed from heatstroke after participating in punishment exercises on July 3 last year and died in hospital a day later, just three days before he was due to be discharged from compulsory military service.
Nour Abdale Awale, a young man suspected to be member of Al-Qaeda linked group, Alshabab who was caught from Deynile district has been shot to death in the spot where he was caught by the Somali armed forces after the military court has issued an emergency order allowing military person[nel] to execute the suspected on the spot without taking him to court proceedings. The executed young man accused of having illegal weapon including grenade bomb and to be the mastermind of an attack launched on Deynile district.
Chairman of military’s lower court Liban Ali Yarow said that the court has [made] the execution order of Nur Abdale Awale, 21 who was member of Alshabab militant fighters after he confessed all the allegations crimes he committed. “He [was] found guilty of attacking with grenade bombs on Deynile.”
Chairman of Somali military supreme courts Abdirahman Mohamed Tur revealed, “From today, everyone confirmed and convicted of guilty of being one of the militant group of alshabab, will not be given a chance and will be executed in the spot where he is being caught.”Editor's note: It is difficult to understand the process employed by the military courts in this case. Was there a mass trial in absentia? Did anyone represent the defendants? How were the names of those condemned determined? Or was the death penalty imposed as a "blank check"? Cf. Hitler's Commando (1942) and Commissar (1940) Orders. How was this accused's confession obtained? Had he surrendered to government forces? Seemingly, there was no opportunity for even the pretense of appellate review. For a recent report by Human Rights Watch on Somali military courts, click here.
Five days ago, a military general allegedly illegally deployed troops to get their colleagues out of police custody - but the authorities still can’t say what happened.
The National Council for Peace and Order (NCPO) decided on Sunday to use a martial court to prosecute offenders in another move to reinforce its control over the political situation as more protests against the coup took place in Bangkok.The article notes that "civilian" courts are open. So it appears that special offenses committed by civilians are intended to be covered -- "people committing crimes, facing lèse majesté charges, creating security threats and defying its orders."
This year alone, more than 20 officers in different cases are contesting the decision of the court martial citing that they will either be unfairly tried and also that the constitution of the members siting in the same has been a ground of a legal battle.
According to constitutional lawyer John Were, the officers are challenging the decision of the martial in other courts instead of filing for a review as many of them feel that they can never find a positive outcome in the courts formed in the barracks.
“I believe that the composition of the [courts-]martial do not follow the constitution when being formed and as a result the verdicts passed are biased and against the law,” says Were.
The transitional justice law does not . . . explain whether the jurisdiction of the specialized chambers will trump that of the military justice system, which currently has jurisdiction over abuses by security forces. The [National Constituent Assembly] should reform Tunisian legislation to restrict the mandate of military justice only to military crimes committed by military personnel. If the specialized chambers are to try the most serious and systematic human rights violations that involve many perpetrators as well as the state apparatus, legislators should first fill a gap in Tunisia's penal code concerning command responsibility. This established principle in international law holds senior officers liable for crimes that their subordinates committed with their explicit or tacit approval. The lack of provisions criminalizing command responsibility in Tunisian law contributed to the military courts' seemingly light sentences for Ben Ali and senior commanders for their role in commanding the troops that killed scores of protesters during the Tunisian uprising.
|Prof. Elizabeth L. Hillman|
|The Lord Chief Justice,|
Lord Thomas of Cwmgiedd
Lord Thomas said the court martial ought to have accorded greater weight as a mitigating factor to the combat stress from which Blackman was suffering.
He said the stress had arisen from the nature of the insurgency in Afghanistan, the way his tour of duty was arranged and other matters personally affecting him.The full opinion can be found here, on the bailii.org website.
With all the concerns in Washington these days about misconduct in the ranks, one might think the military justice system is swamped with unruly troops and commanders looking to crack down on them.
In fact, it’s just the opposite.
Across the force, the military is meting out far less punishment today than just a few years ago. It’s a hard-to-explain trend that has many military justice experts wondering whether commanders have lowered expectations for keeping troops in line — or simply gone soft on some forms of misconduct.
Over the 10 years from 2004 to 2013, data from the service judge advocates [general] show:
■ Courts-martial have dropped about 50 percent.
■ Nonjudicial punishments are down about 25 percent.
■ Bad-conduct discharges have fallen by more than 60 percent.
And according to the Justice Department, the number of troops convicted of crimes and incarcerated in military prisons has shrunk by 35 percent.What's your theory?
In August 2011, following intensive fighting in Somalia’s capital, Mogadishu, and the withdrawal of the main Islamist opposition group, Al-Shabaab, from the city’s center, then-President Sheikh Sharif Sheikh Ahmed of the former Transitional Federal Government declared a state of emergency in areas vacated by Al-Shabaab. The decree granted the military court jurisdiction over all crimes committed in these areas – including by default over civilians. Although the state of emergency expired after three months, the military court has continued to try a range of defendants beyond those envisioned under the Military Code of Criminal Procedure.
The military court has tried Al-Shabaab-related cases, as well as cases traditionally difficult for civilian courts, such as prosecuting members of the police and intelligence agencies. African and international human rights standards largely prohibit trials of civilians before military courts, and increasingly call on countries to ensure that military court jurisdictions are restricted to military offenses by military personnel.
[T]here is a need for a fundamental wall-to-wall review of the National Defence Act, a review that has to be conducted outside the control of the Department of National Defence so that Parliament can be provided with a legislative proposal that addresses not only the wishes of the military leadership but also, first and foremost, the expectations of our civil society, who demand that our soldiers who serve in uniform be afforded rights equal to those provided in the civilian penal system in Canada and other militaries abroad. This is currently not the case.
|Col. (ret) Thom Karremans|
According to NOS [Netherlands Broadcasting Foundation], the court will table the latest request from the relatives in the autumn of this year but the relatives demand that it is not handled by the military court, because there are concerns about impartiality.
Attorney Liesbeth Zegveld who represents the relatives said that the Ministry of Defense has been too deeply involved in the case. She said that there are indications that the Ministry influenced the previous decision by the court not to prosecute the retired colonel.
She also said that the Ministry “frustrated” attempts to unearth the truth. “It goes beyond making evidence disappear. The Military Judge works for the Ministry of Defense. Involvement of a soldier in the decision about this request is highly problematic,” said Zegveld.
|The Lord Chief Justice,|
Lord Thomas of Cwmgiedd
His lawyers told the appeal court that evidence from [SAS member and Nightingale's best friend and housemate] N's former father-in-law could suggest he had two pistols. It was also claimed that a medic called by the prosecution to give evidence about Nightingale's mental state stepped outside his areas of expertise.
Lord [Chief Justice Lord] Thomas [of Cwmgiedd] said there was a "substantial amount" of evidence presented to the trial that could have led to the court martial board's decision. This included "a very large amount of evidence" relating to soldier N's credibility. The three judges who heard the appeal were unimpressed by the arguments on the medic's evidence.
"In our judgment, none of this material goes anywhere to affecting the safety of this conviction, and for his reason and others we have given, we dismiss this application," Thomas said.Also on the panel were Higginbottom and Baker, JJ.
The military legal framework must be improved... (健全军事法规制度体系)...
“I later learnt that the respondents intend to charge me on the allegations that I unlawfully deducted money from all employees’ salaries in the Zimbabwe National Army including the respondents and all personnel who constitute the court martial,” [Captain John] Mambewu said in an affidavit attached to the application.Editor's note: This case does not raise the larger jurisdictional issue of where civilian type offenses such as larcency or fraud ought to be prosecuted, but what should happen where every possible court-martial panel member will be disqualified because he or she is a victim of the offense. A longstanding legal principle--the Rule of Necessity--holds that where all are disqualified, none are disqualified. See Will v. United States, 442 U.S. 200, 213-16 (1980), Here, however, there is the alternative of trial in a civilian court where the problem of disqualification for cause of all potential decision makers would not arise.
SHOULD military personnel be tried in civilian courts? It is a fraught question, but more for political reasons than legal ones. In legal terms, military personnel can be investigated, charged and tried by the civilian law-enforcement and judicial apparatus and it is the military that has to make the case for trial in a military court as opposed to a civilian one. For the most part, this is neither controversial nor very problematic. Crimes committed by one individual against another in their private capacity have little to do with the institutional interests of the military and so there is little reason why, say, theft or assault cannot be tried by the civilian apparatus. But, as the Supreme Court bench led by Justice Jawwad Khawaja has discovered in the case of the 35 missing persons taken away by the military from a Malakand detention centre, once institutional interests come into play the question of civilian jurisdiction is somehow always made controversial.