Monday, June 30, 2014

Good idea from Peru

All too often, it falls to Global Military Justice Reform to be the bearer of bad news, such as the misuse of military jurisdiction or abusive conduct by military personnel. Tonight we have a "good news" story from Peru, where, according to this article from Andina Peruvian News Agency, the head of the Military Police, Brig. Gen. (ret) Juan Pablo Ramos Espinoza, announced the creation of an office where members of the public can lodge complaints against police and military personnel. Complaints will be evaluated by military prosecutors.
General Ramos reported that the creation of this office is part of a broad program of crime prevention in the military and police and a new policy of transparency and coordination with the community. 
"Military justice is not something alien to the civilian population. On the contrary, we are working hard to raise the standards of discipline and ethical quality of the armed forces and police, and in this work we want citizens to be our allies in denouncing the bad elements who disgrace the uniform of the motherland. Although they are very few, their misconduct causes serious damage to the image of our institutions." [Rough Google translation.]

General Xu Caihou--on his way from the Statesmen's Forum to the PLA Military Court


General Xu Caihou (seen here in a 2009 photo taken when he spoke at the Statesmen's Forum of the Center for Strategic & International Studies in Washington) is the former vice-chairman of China's Central Military Commission. He was expelled from the Communist Party in a Politburo meeting (of which he was formerly a member) on 30 June. The meeting was presided over by General Secretary Xi Jinping, and heard a report from the Central Military Commission's Disciplinary Commission (the PLA's Communist Party disciplinary organization) summarizing the results of its investigation of General Xu.  He is the highest ranking PLA officer to fall in the current anti-corruption drive.
General Xu's case has been transferred to the PLA Military Procuratorate (on the authorization of the Supreme People's Procuratorate).  It is likely that General Xu will be tried in the PLA Military Court.  As discussed in an earlier blogpost, the trial would not be open to the public.  
General Xu, was reportedly taken from his bed at the 301st Military Hospital (the PLA's most elite) in March to face investigators.
The Chinese press releases stated that he had abused his power and received bribes “personally and through his family members” in exchange for granting promotions in the military. General Gu Junshan, who was tried earlier this spring by the PLA Military Court, was a protégée of General Xu. Analysis of the political implications can be found here.

Disturbing case from Jakarta

There are times when one can only shake one's head when reading the facts of a case. Consider this incident, described here in Friday's Jakarta Post: A first private in the National Military Police has been arrested for dousing an illegal parking attendant with gasoline and setting him on fire, apparently for refusing to pay a bribe equivalent to US$4.00. The victim was severely burned and is receiving medical care. The suspect is in military police custody and will be tried by a military court.

National Lawyers Guild suggestions to the Military Justice Review Group

The National Lawyers Guild has submitted a number of suggestions to the Defense Department's Military Justice Review Group. Here is the NLG press release:
The National Lawyers Guild (NLG) today submitted comments to the Defense Department’s Military Justice Review Group as part of its comprehensive review of the military justice system. Recommendations to improve the system include eliminating the “convening authority” as the near-absolute final arbiter of what constitutes justice in a given case.
The NLG also calls for eliminating criminal liability for acts that are purely military offenses, and for clarifying the effect of a conviction by summary court-martial.
“We are gratified that this review is taking place, as changes in the court martial system are long overdue.  We do not believe that anything less than a complete restructuring of the way the military handles offenses can be adequate. We have, therefore, focused on large changes, rather than the many small details that could lead to some incremental improvement without altering the basic inequities that lead so many to see military justice as an oxymoron, said David Gespass, NLG past president and one of the authors of the comments.

NIMJ suggestions to the Military Justice Review Group

The National Institute of Military Justice has submitted the following suggestions to the Defense Department's Military Justice Review Group:
1)  In R.C.M. 109 or 503(b) or some other appropriate place, prescribe a fixed term of office of at least five years’ duration for military trial and appellate judges, or in the alternative, for a shorter fixed period that terminates with a release from active duty or retirement.  
Terms of office are widely understood to be an essential component of judicial independence.  The current arrangements are unsatisfactory because the three-year terms afforded to Army and Coast Guard judges are too short and subject to loopholes, and Air Force, Navy, and Marine Corps judges continue to serve on an at-will basis. This proposal would eliminate the service disparity, be good policy, and would comport with contemporary standards for the administration of justice as manifest, for example, in the jurisprudence developed by the Human Rights Committee under the International Convention on Civil and Political Rights to which the United States is a party.  See Prof. Victor M. Hansen’s recent comments on tenure for military judges, available at http://globalmjreform.blogspot.com/2014/03/prof-hansen-on-tenure-for -military.html.
2)  Amend R.C.M. 109 to prescribe uniform rules of professional and judicial conduct. 
The services’ inability to speak with one voice on these subjects is a significant failure. The result is a legal tower of Babel.  See Military Court Rules of the United States (LexisNexis 2012).
3)  Add a new requirement in R.C.M 405(d)(1) that the Article 32 Investigating Officer be a Judge Advocate, absent a written finding of imperative necessity to use a line officer made by the Convening Authority.

Weaknesses of UK military justice system raised in the House of Lords

On 23rd June 2014* the House of Lords debated a motion to ‘take note of the Armed Forces’. The Hon. Chairman of the Association of Military Court Advocates (the professional body for lawyers practising in the UK military justice system) the Rt. Hon. Lord Thomas of Gresford OBE QC  took the opportunity to address some of the weaknesses in the UK system. Lord Thomas QC was at the center of many of the cases and legislation that led to the 2006 Armed Forces Act reforms to the UK military justice system.

Hansard Report:
Lord Thomas of Gresford (LD): My Lords, I hope that your Lordships will forgive me if I do not follow on the issue of cuts and resources. I do not feel that I am qualified to add anything on this to those who have already spoken.

As chairman of the Association of Military Court Advocates, I want to refer to the implications of the withdrawal of British forces to the UK, which will happen perhaps by the end of this decade. At that point we will not have forces serving abroad, at least for any length of time. The rationale of courts martial is that they bring a British standard of justice to our serving servicemen, wherever they happen to be serving in the world, and do not open them to trial and punishment in some foreign jurisdiction. If all the forces come back to this country for any length of time, the question will be raised of whether courts martial are acceptable for dealing with civil offences under what is currently Section 42 of the Armed Forces Act 2006. Will there be room for a parallel system of justice?

Sunday, June 29, 2014

No military jurisdiction over cursing at an off-duty officer in mufti

The Supreme Military Tribunal of Brazil has issued an interesting unanimous decision. According to this account, the court found that there was no military court jurisdiction over a civilian who cursed at a captain who had put a civilian woman in a choke-hold in apprehending her for wearing a fake uniform. The captain was off-duty and in plainclothes (wearing shorts and a hat). The defendant cursed at the captain because he thought the woman was being assaulted. The decision indicates that crimes committed by civilians are military crimes only when they concern military institutions or military functions.

Saturday, June 28, 2014

Are Indian officers too litigious?

Adm. Arun Prakash, IN (ret)
Former Chief of Naval Staff Admiral Arun Prakash, writing in The Asian Age, sees problems in the fact that Indian military officers have increasingly gone to court to protect their rights:
Ever since courts of law started accepting service related cases in the early 1990s, the military leadership has been haunted by some difficult conundrums. Is the rank and file of the armed forces being set a poor example by litigious officers who decide to ignore the National Defence Academy motto “Service Before Self”, and go to court? Will a day come when a soldier questions a battlefield command and then approaches a court to justify his actions? Should that happen, won’t it undermine the foundations of discipline and command in our armed forces? While the constitution of the Armed Forces Tribunal has helped resolve many issues “in house”, the apex court still remains available to litigants.
Once considered a rare and unusual phenomenon, even a dishonourable act, taking recourse to legal remedies for redressal of service-related grievances has become common amongst military personnel. Only the short-sighted will fail to discern that the increasing intervention of courts in what should be internal affairs of the armed forces will damage their morale, cohesion and fighting spirit for two reasons.

Hon. Edmond Blanchard, Chief Justice of the Court Martial Appeal Court and the Federal Court of Canada dies in office

Chief Justice Edmond Blanchard
Canada lost one of its leading sons with the passing on June 27, 2014 of the Honorable Edmond Blanchard, 60 as of May 31, Chief Justice of the Court Martial Appeal Court of Canada since September 17, 2004. Justice Blanchard, who hailed from Campbellton, New Brunswick, was called to the Bar of New Brunswick in 1979 and practiced law in the private sector before seeking elected office in 1987. He went on to serve in the provincial legislature in a succession of keynotes ministerial appointments notably as the Attorney General and Minister of Justice and Minister of Finance. He was appointed as a Judge of the Federal Court and ex officio member of the Federal Court of Appeal on October 5, 2000 and, later, as a Judge of the Court Martial Appeal Court of Canada and a member of the Competition Tribunal.

Justice Blanchard was admired and respected by all who knew him professionally particularly so by those fortunate enough to call him a friend.  Retired Justice Gilles Létourneau of the Federal Court of Appeal, who served with him on the Court Martial Appeal Court for over a decade, characterized his untimely death as “a blow and great loss to the Judiciary as a whole and the Canadian military justice in particular. Under his guidance and leadership the CMAC restructured its decision making process. It reasserted the need for a military nexus as a condition precedent to courts martial acquiring jurisdiction over ordinary criminal law offenses and depriving members of the Canadian Forces and civilians accompanying them of their right to a trial, especially a jury trial, before a civilian court. In a series of decisions the CMAC granted military judges their judicial independence consisting of administrative independence, financial security and security of tenure.” Justice Létourneau speaks of his deep admiration and respect for Justice Blanchard both as a judge and as friend. “I was fortunate to get to know him on a personal basis. His wit and wisdom, love of nature, pleasure in good company and intellectual conversation are things I will recall fondly always. He was an exceptional human being on the personal and professional level.”  He hailed him as “a model judge with very high standards of efficiency, great dedication and commitment, clarity of reasoning and soundness of judgment in all the cases. Additionally, “he had an unimpeachable work ethic and was renowned and respected for his civility and affability with everyone he came in contact with. Although very much saddened by his passing, I am confident that his legal legacy will endure and continue to illuminate the Canadian military justice system for years to come. He will be missed.”

Response Systems Panel final report issued; powerful dissent on a core issue

The 9-member Response Systems to Adult Sexual Assault Crimes Panel has just issued its final report. The lengthy report and annexes can be found here. On the role of commanders, the executive summary states (at 5):
Military commanders are essential to the prevention of sexual assault. Commanders lead their units and organizations in war and peace, and are responsible for ensuring mission readiness, including maintaining good order and discipline within their units. Commanders must establish organizational climates that are intolerant of the behaviors and beliefs that contribute to sexual assaults. When a sexual assault does occur, military commanders must lead decisive response efforts and ensure care for victims. They must also take appropriate administrative and criminal action against those determined to be offenders while respecting the due process rights of those suspected or accused of sexual assault. A commander’s success or failure in fulfilling these responsibilities should be considered in his or her performance evaluation, as it directly reflects on the quality of a commander’s leadership and effectiveness. It should also be weighed in promotion decisions and the officer’s ability to advance in the Armed Services. The Department of Defense, the Services, and senior leaders must ensure all commanders understand their responsibilities, are held accountable, and fairly evaluated on their execution of these critical tasks. (Emphases added.)
Such a policy unquestionably incentivizes commanders to err on the side of prosecution when exercising their power under present law to dispose of allegations. It is difficult to imagine a clearer conflict of interest.

Friday, June 27, 2014

Report of 2013 Santiago conference on modern challenges in the military legal domain

The report of the International Conference on Modern Challenges in the Military Legal Domain, held in Santiago de Chile, November 20-23, 2013, is now available here, on the website of the International Society for Military Law and the Law of War. The Santiago conference was jointly sponsored by the Chilean Army and the International Society

Editor's note: If you are reading this blog, you ought to be a member of the International Society.

New Zealand SAS soldier's conviction mostly overturned by Court Martial Appeal Court

A New Zealand SAS soldier known only as Trooper S has persuaded the Court Martial Appeal Court to reverse most of the charges of which he was convicted at a court-martial, including stealing Army property and unlawful possession of Army property. Details appear in this report by Radio New Zealand News and this press statement by the Labour Party's Defence spokesman, Phil Goff. The Radio New Zealand article includes this link to an interview with Trooper S's defense counsel, Melinda Mason.

Trooper S's name has been suppressed by court order. This seems to be becoming a matter of routine in some countries based on claims of concern for the personal safety of the accused. Is it being overdone? Is every soldier who deploys entitled to name suppression if later charged?

Thursday, June 26, 2014

What if the government reassigns defense counsel?

Major Jason Wright, JA, U.S. Army
The Rachel Maddow Show yesterday ran this smart segment about Major Jason Wright, a U.S. Army judge advocate who resigned his commission rather than accept orders to a JAG Corps graduate course that would have prevented him from continuing his representation of Khalid Sheikh Mohammed, one of the accuseds in the 9/11 military commission case.

This is the latest in a series of professional responsibility issues that has emerged, involving both prosecutors and defense counsel, since military commissions were revived under President George W. Bush.

Bad vibe at the barbecue

Justice Marco Aurélio
Justice Marco Aurélio Mendes de Farias Mello of the Supreme Federal Court of Brazil has handed down an interesting decision on a petition for habeas corpus. Two soldiers got in a fight at a barbecue at a private residence; the accused stabbed the other soldier. The military courts found there was court-martial jurisdiction, but Justice Aurelio, sitting alone, disagreed (HC 118708, June 3, 2014) and suspended execution of the sentence pending final action by the court on the habeas petition.

Wednesday, June 25, 2014

Venezuelan soldiers can be ordered to participate in political marches and rallies

Supreme Court of Venezuela
The Venezuelan Supreme Court of Justice has rejected a complaint against the participation of military personnel in political marches and rallies. According to this account in El Nacional (adjusted Google translation):
The Constitutional Court dismissed a case members of the Institutional Military Front (FIM) filed late last March against the Minister of Defense, Admiral Carmen Melendez, for ordering members of the National Armed Forces (FAN) to attend a demonstration organized by the government and the United Socialist Party of Venezuela (PSUV) on March 15 to support the operations of the National Guard (GN) during student protests.
"Participation by FAN members in political events does not impair their professionalism, but is a bastion of democracy and active participation," said Gladys Gutiérrez, Francisco Carrasquero, Marco Tulio Dugarte, Carmen Zuleta de Merchan, Arcadio Delgado Rosales, Luisa Estella Morales and Juan Jose Mendoza (rapporteur).

Tuesday, June 24, 2014

Military justice and opera

Military justice has rarely figured in the opera literature -- Benjamin Britten's Billy Budd comes to mind -- but now there is an opera based on the suicide of U.S. Army private Danny Chen. This article from China Daily USA tells the tale. The world premiere of An American Soldier was presented on June 13 at the John F. Kennedy Center for the Performing Arts in Washington, D.C. Click here for National Public Radio's piece.

Discipline in high places

The Air Force Times has this revealing article about how the service dealt with misconduct by senior officers in 2012-13. In the past, information on this subject has been available on a hit-or-miss basis, but recent legislation, noted in the AFT article, adds a welcome measure of transparency. The services until now have enjoyed essentially unfettered discretion regarding whether to release disciplinary information that falls short of court-martial proceedings.

It's an age old question whether senior officer misconduct is punished less harshly than misconduct by other military personnel. Click on the photos in the article and see what you think about the outcomes.

Full transparency required in making non-judicial appointments such as the JAG

CF Legal Branch Badge

The Canadian JAG is not a Judge!

In April, a fellow blogger noted that in Canada the Judge Advocate General (JAG) is not a judge! That’s a fact. At least, not since 1998 when following a major restructuring of the National Defence Act the Office of the Chief Military Judge was created. Since that time, the Chief Military Judge sits at the apex of the Canadian military justice system having jurisdiction over all military and civilian personnel subject to the Code of Service Discipline which includes the JAG. Since then, our JAG has been relegated to the role and functions of  a legal advisor whose duties are somewhat akin to those performed by several of his colleagues serving at Justice Canada.

Why is the Canadian JAG paid on a judge's scale?

As pointed out by retired Justice Gilles Létourneau, ironically the legacy term “Judge” in the title of the JAG – which was imported to Canada from Britain with the remainder of our military justice system at the turn of the last century - allows the current office holder who is not a judge to be paid the salary of a judge of a Superior or Federal Court. Something which was confirmed by the external Military Judges Compensation Committee in its December 2012 report to the Honourable Peter MacKay, the then Minister of National Defence, noting that the JAG’s pay was indexed to “that of federal court judges”.

In Canada federally-appointed judges are paid $300,800 annually while a Chief Justice and an Associate Chief Justice are paid $329,000.  For sake of comparison, the Compensation Committee confirmed also that the “Chief of the Defence Staff (CDS) [was] paid $327,000.” 

What will be of interest to the military community, is that the JAG is, at the very least, the second best paid officer in the Canadian Forces. In the meanwhile, the pay of our most senior component commanders such as the Commander of the Royal Canadian Navy, the Commander of the Canadian Army and the Commander of the Royal Canadian Air Force, who are all serving at the rank of lieutenant-general, is capped at $252,804 which is just a shade over the salary of the Minister of National Defence set at $240,000.

Cruelty to animals

The following article appeared in La Razón in La Paz, Bolivia (modified Google translation):
A complaint for "dishonor" to the armed forces by Lieutenant George Muriel, who on June 7 gutted a dog during a military instruction class at the Military School of Engineering (EMI), will be presented today in court. 
"The rector of the EMI issued a press release on Sunday stating that we can apply the Organic Law of the Armed Forces, which states in Article 89 that officers who dishonor their institution should be dismissed," said Susana del Carpio, president of SOS Animals. Colonel Alvaro Rios, president of EMI, said Muriel's action is "isolated" because it was not scheduled by the university.
Under Article 89(e), personnel dismissed for violating the honor and dignity of the armed forces may not rejoin the military except in cases of international conflict. 

Monday, June 23, 2014

Quote of the day

“It’s baloney — and I would’ve used a different word if I could.”

Thus spake George Washington University law professor Stephen A. Saltzburg in 2008 comments to The New York Times on the Congressional Budget Office's contention that lifting the statutory restrictions that prevent the lion's share of military personnel convicted by courts-martial from petitioning for discretionary review by the United States Supreme Court would cost the taxpayers $1,000,000 per year.

For balance, The Times quoted Robert E. Reed of the Department of Defense Office of General Counsel:
“A lot of those supporters [of lifting the restrictions on access to the Supreme Court] are only looking at this as a motherhood, apple pie sort of issue,” he said. “There’s a logic and a rationale to this. We’re not just trying to be mean and difficult for the defendants.”
So what, you might ask, has happened in the intervening years? Nada.

Sunday, June 22, 2014

The long and winding road of reform

The Canadian penal military justice system is in need of fundamental reform, not mere tinkering. So far there has been some changes to the system, a great many of them in the field of penal and disciplinary justice which were imposed by judicial decisions of the Court Martial Appeal Court (CMAC) and the Supreme Court of Canada.

It took more than 19 years of costly litigation to achieve an incomplete independence of military judges: see Leblanc v. R., 2011 CMAC 2, R. v. Lauzon (1998), 6 C.M.A.C. 19 and R. v. Généreux (1992) 1 S.C.R. 259. They still hold a rank inferior to over 100 officers who fall under their penal and disciplinary jurisdiction. As their judicial independence grew, military judges have become more assertive. Improved fairness and justice are already visible on this front.

The same cannot be said, however, of both the existing Prosecutorial and Defence Services which fall under the general supervision of the Judge Advocate General (JAG). The potential for unwarranted command influence is great on both Services, either in the form of active or refraining influence on the lawyers who operate in these Services. Their pay increase is linked to their performance assessed by their superior, i.e., the JAG. It is also the case for their promotion or task assignment within the Canadian Forces as a whole.

German military justice in World War II

Fort Zinna Prison, Torgau
Watch for Frédéric Stroh and Jean-Marie Fawer's film Torgau 1939-1945: A Chronicle of Military Justice. It's about the Reich War Court and the 30,000 soldiers it condemned to death during World War II. This link includes a trailer. It is unclear when the full movie will be available for commercial release. At left, Fort Zinna Prison.

Summer reading en français

For francophone readers, your summer reading list might include André Bach's Justice Militaire 1915-1916. A sequel to Fusillés pour l’exemple, 1914-1916, this volume is, according to Valerian Milloz's review in Politique étrangère, "a fundamental tool for anyone interested in military justice and the coercive and punitive power of the State." The central question is why French military justice became much less deadly after the first two years of World War I. Among other things, the book examines the struggle in Parliament beginning in October 1915 to expand the rights of the accused in courts-martial, resulting in the Act of April 27, 1916 on the functioning and powers of councils of war and the Decree of June 8, 1916, which authorized applications for review of death sentences.

Saturday, June 21, 2014

Is a reservist's failure to appear for mandatory target practice a minor offense?

Not necessarily, holds the Military Court of Cassation in Switzerland in Auditeur en chef v. Cpl. C.P. (March 14, 2014). Even though he was subject to obligatory service, Cpl. C.P. failed to show up for target practice year after year, starting in 2004. Minor disciplinary action including a suspended 30-day sentence and a SF1,000 fine seemed to have no effect on him. Inexplicably, the trial court (Military Court 1) found that his last failure to appear for target practice remained a minor offense. The Auditeur en chef appealed, and prevailed. The Military Court of Cassation held that "systematic refusal of a noncommissioned officer to perform target practice, which can be done in a few hours, must indeed be treated as a case of ordinary insubordination" for purposes of the Military Criminal Code. "Moreover, by failing to appear for the trial he waived his right to explain; the explanations he gave before the investigating magistrate are unconvincing, nor do they contain favorable elements from the standpoint of his personal circumstances." The case was remanded with instructions to resentence Cpl. C.P. for insubordination (and not to a mere disciplinary punishment) and vacate the suspension of his earlier sentence.

Constitutional Court of Peru hearing on constitutionality of new legislation

Brig. Gen. (ret) Juan Pablo Ramos, head of the Peruvian Military Police Force, on Friday defended the recent amendments to the Military Police Criminal Code in a hearing before the Constitutional Court of Peru. The Peruvian News Agency reports (rough translation):
"The public can fully trust the new military court because this entity has adapted its rules to the Constitution of Peru and international standards," he said at a hearing before the Constitutional Court (TC), which is considering a lawsuit challenging several articles of the new Military Police Criminal Code and related so-called "law of use of force" standards. . . .
"Military justice seeks to enforce its sphere of action, which includes investigating and prosecuting soldiers and police who commit service related offenses and has nothing to do with the criminalization of citizen protests," he said. . . .

Friday, June 20, 2014

Brig. Gen. Sinclair to retire as lieutenant colonel

Brig. Gen. Jeffrey A. Sinclair
Under U.S. law, military personnel are retired in the highest grade in which they have served satisfactorily for at least six months. The Associated Press reports that Brigadier General Jeffrey A. Sinclair, convicted earlier this year in a closely-watched general court-martial, is being retired in the grade of Lieutenant Colonel, based on his misconduct as a colonel and brigadier general. According to the AP:
Sen. Kirsten Gillibrand, D-N.Y., said the reduction in retirement rank was the right thing to do.
But, she added, it “doesn’t make the outcome more satisfactory. This case illustrated a military justice system in dire need of independence from the chain of command. It’s not only the right thing to do for our men and women in uniform, but would also mitigate issues of unlawful command influence that we have seen in many trials over the last year.”

Another review of military justice legislation, but at the state level

With all the reviews of United States military justice underway (click here for a catalog), it's easy to overlook the fact that the several states also have military justice systems that may be in need of study. The Georgia State Senate, for example, has created a three-member committee to study the state's Code of Military Justice. According to this article the Marietta Daily Journal, the committee will
examine the law’s ability to facilitate force integration and interoperability, prepare members being called to federal status to meet their responsibilities and uphold the standards required under the federal Uniform Code of Military Justice.
The committee will report by December 1. 

A carousel for military grievances

The Canadian military grievances system is rooted in pre-confederation British military law and our own colonial Militia Act, which is based on British tradition. One such tradition is the historic Right to Grieve given to soldiers, for the better governance of the armed forces. The right to grieve has its legislative origins in the Articles of War, published in 1717. Since then in Britain, Canada and elsewhere, the operation of a military grievances system has been taken as an indicator of the wider health and effectiveness of the military justice system.

A significant backlog in the number of grievances awaiting resolution, for example, may be symptomatic of a more general dysfunctionality of the military justice system, because the right to file a grievance, and have it dealt with expeditiously, is a significant element of an efficient military administration and the proper operation of a military justice system.

Maintenance of morale

Students of military history will understand that Maintenance of Morale is a dominant Principle of War which, to a large degree, is dependent on a military grievances system which not only works properly, but is seen and perceived to work correctly and, as importantly, in a timely manner.

Delays measured in years to resolve simple grievances would likely have long term deleterious effect on military morale and performance. It also impedes the realisation of a just and fair outcome to a valid grievance. For these reasons, to the degree possible, delays should be avoided at all costs, as low morale is a primary contributor to military failure.

Sexual assault cases to be tried in Colombian civilian courts

Pres. Juan Manuel Santos
Colombia Reports advises that on June 18, Colombia enacted legislation that would transfer responsibility for the prosecution of sexual assaults by members of the military and other armed groups to the civilians courts.
[President Juan Manuel] Santos stated with respect to the law, “it establishes that acts of sexual violence, when they are committed systematically or in general against the civilian population, will be declared by the judicial authorities as crimes against humanity.”
Santos declared that the justice system should, “condemn the victimizers regardless of which armed group they belong to, including functionaries of the state [the military] if they commit a crime.” Santos added that, “even if they [sexual crimes] occurred 10, 20, 30 or 50 years ago, justice may investigate and condemn the authors of these crimes.”
This entails that members of the military currently under investigation for sexual crimes will have their cases transferred from a military tribunal to the civilian justice system, according to national radio Caracol.
The text of Law 1719 of 2014 is available in the online Diario Oficial for June 18, 2014.

Thursday, June 19, 2014

ECOWAS court orders military convict removed from death row pending appellate review

The Community Court of Justice of the Economic Community of West African States (ECOWAS) has ordered Nigeria to remove a man with the appropriate name of Thankgod Ebhos from death row while his case is on appeal. Nigerian officials have subjected him to the pain of being taken to the gallows with other convicts even though he was not scheduled for execution. Mr. Ebhos was convicted by a military court in 1995, according to this account. According to this article in the Guardian, "the court ordered the Nigerian government to remove Thankgod’s name from death row as any attempt to execute him while his appeal was still pending in the Court of Appeal would be a gross violation of his right to appeal as contained in section 6 subsection 4" of the International Covenant on Civil and Political Rights. The court's decision is not yet on its website.

Hillary Clinton tells CNN's Christiane Amanpour she supports Sen. Gillibrand's military justice reform bill

Christiane Amanpour and
Hillary Clinton on CNN
In a town meeting style event this week with CNN's Christiane Amanpour, former Secretary of State Hillary Clinton has expressed support for the approach taken in Sen. Kerstin Gillibrand's Military Justice Improvement Act. That bill, which garnered 55 votes in the Senate earlier this year (five votes shy of the 60 needed for cloture), would shift the charging power for sexual assault and other serious civilian-type offenses from commanders to judge advocates outside the chain of command. Secretary Clinton said that "if there is not evidence that this other approach [advanced by Sen. Claire McCaskill] is working, then we should go back to Kirsten’s proposal.”

Challenge to 2013 Military Police Criminal Code in the Peruvian Constitutional Court

The constitutionality of 23 provisions of the Military Police Criminal Code that Peru enacted as Legislative Decree No. 1094 last year is among the 77 cases to be taken up by the Constitutional Court of Peru in its first hearings following national elections and the addition of six new judges to the court, according to this article in La Republica.

Trial by Congress

For some reason, Congress feels less compunction about getting into the details of pending courts-martial than it does about doing so for cases in the civilian federal courts. A current illustration is yesterday's hearing before the House Committee on Foreign Affairs. According to this report in the Daily Beast, Spec. (ret) Cody Full, a former roommate, testified that "Sgt. Bowe R. Bergdahl’s actions in Afghanistan constituted the 'ultimate betrayal'—and he deserves to be charged with desertion." Spec. Full rattled off offenses for which Sgt. Bergdahl should be investigated, adding that "[k]nowing that someone you needed to trust deserted you in war and did so on his own free will is the ultimate betrayal."
Witnesses arranged by the Republican-led House panel testified that Bergdahl’s decision to leave his base in Afghanistan endangered lives, and possibly cost them. Mike Waltz, a former Army special forces commander in Afghanistan, testified that the search for Bergdahl allowed the Taliban to lure soldiers into traps.
“My men were lured into ambushes, including an Afghan home rigged with explosives, a car bomb that was primed to explode, and other types of deadly traps,” Waltz said. “All of my men, me included, were absolutely furious and resentful, frankly, that a fellow American soldier had put us into this position.”

More Army officers to be prosecuted in Iraq

The Iraqi government has announced that 59 Army senior officers will be prosecuted for fleeing their posts during the fighting for Mosul. The news account from Ahlul Bayt (n.s.) News Agency does not indicate whether this figure includes the four general officers whose dismissal and, in one case, prosecution was previously announced. 

Wednesday, June 18, 2014

Impartiality on the bench

Yesterday the U.S. Navy-Marine Corps Court of Criminal Appeals handed down its latest decision in the long-running case of United States v. Kish. The court found that the military judge had abandoned his impartiality by such acts as commandeering the examination of witnesses, putting 234 (n.b. this is not a typo) questions to one witness. The court described some of these questions as "inane." The judge also made highly questionable remarks at a professional military education lecture in which he commented that convicted personnel needed to be "crushed." At least 11 other cases raise issues about the judge's lecture.

Major jurisdictional ruling by Constitutional Court of Chile

On June 17, 2014, the Constitutional Court of Chile handed down a landmark ruling on the jurisdiction of military courts. The ruling came in a case brought by the National Human Rights Institute after three Carabineros officers tortured a fourth. This summary appears in Cooperativa.cl. The opinion of the court can be found here. The court found, 6-3, that the officers' misconduct was not an act of service (i.e., in the line of duty) and hence lay outside the permissible limits of military court jurisdiction. "In light of the new standards on military jurisdiction, there is no constitutionally permissible justification for a person -- civilian or military -- to be prevented from exercising rights as a victim of a criminal offense, and being deprived of a rational and fair process."

2014 amendments to the Manual for Courts-Martial (2012 ed.)

Last Friday President Obama signed an Executive Order amending the Manual for Courts-Martial, United States (2012 ed.). The changes made to the Rules for Courts-Martial, Discussion and Analysis appear in today's Federal Register and can be found here here.

Iraqi military justice and the loss of Nineveh province

Prime Minister Nouri al-Maliki
Rûdaw, which describes itself as a Kurdish media network, has this report on the Iraqi government's plan to prosecute Iraqi Army Brigadier General Hidayat Abdul Karim, who is Kurdish, in connection with the loss of Nineveh province:
[Prime Minister Nouri al-] Maliki, who is commander-in-chief of the Iraq armed forces, ordered in a statement that Hidayat Abdul Karim, a Kurd and Iraqi army commander, face trial in a military court for the battlefield defeat.
This move has infuriated Kurdish Peshmerga officials and members of the autonomous Kurdistan Regional Government (KRG).
According to a statement read on state television, Maliki said the dismissed commanders included Lt. Gen. Mahdi al-Gharawi, his deputy Maj. Gen. Abdul Rahman al-Handal Mahdi, and chief of staff Brigadier General Hassan Abdul Razzaq Ghazi.
It added that Karim “has been referred to the military court for escaping from the battlefield."

Slow pace at Sierra Leone mutiny court-martial

Judge Advocate Otto O. During
The Sierra Leone mutiny court-martial with 14 accuseds continues to inch forward. According to this report from Awoko's Betty Milton, who seems to be to this case what the Miami Herald's Carol Rosenberg is to the Guantanamo military commissions (i.e., she appears to report on every trial session), the prosecution has put on testimony of only three witnesses since trial began on April 2. Of interest, at the latest session judge advocate Otto O. During observed that investigative personnel should be given some legal training, apparently prompted by deficient testimony by a witness from CID headquarters.

Tuesday, June 17, 2014

Quote [and helpful, unobvious suggestion] of the day

"I expect the administration to give our military professionals time to properly gather any useful intelligence he has.”
John A. Boehner, Speaker of the House of Representatives, referring to the capture of Ahmed Abu Khattala, suspected of leading the Sept. 11, 2012 attack in which U.S. ambassador to Libya J. Christopher Stevens was killed in Benghazi. From this article in The New York Times.

Sens. John McCain and Lindsey Graham have predictably suggested that Abu Khattala should be sent to Guantanamo Bay, Cuba. Sen. Patrick Leahy's reaction to that suggestion -- "Oh for God's sake" -- is runner-up for today's Quote of the Day. Second runner-up is Sen. Ted Cruz, who observed that Abu Khattala "belongs in Guantanamo and in the military justice system, not in the U.S. civilian court system with the constitutional protections afforded U.S. citizens." (Aside from the conclusion, there are two big errors in that comment. Can you spot them?)

Update: Abu Khattala will be tried in the United States District Court for the District of Columbia, which issued a warrant for his arrest last year.

A Marine's take on the case of Sgt. Bergdahl

Capt. Elliot Ackerman, USMC
Elliot Ackerman, a novelist who served in Iraq and Afghanistan as a Marine junior officer and earned a Silver Star in Fallujah, has a smart and literate piece on the case of Sgt. Bowe R. Bergdahl in the current issue of The New Republic. The article, which presents back-story information and a perspective not seen elsewhere in the reams already written about the case, defies pulling out an arbitrary extract, so let's not try. Read the whole thing here.

Monday, June 16, 2014

New disciplinary legislation for Bangladesh coast guard

The Bangladesh cabinet has approved in principle a disciplinary statute for the nation's coast guard. According to this report in the Daily Star:
The cabinet also approved the draft of Bangladesh Coast Guard Act 2014 with a provision of capital punishment for mutiny offences.
The proposed law has been approved to make the Coast Guard a disciplined, skilled and effective force, Cabinet Secretary M Musharraf Hossain Bhuiyan told reporters after the meeting.
The law has outlined steps for various mutiny-related offences, trial procedures, formation of court martial and provision for appeal, among others, he said.
The previous law, formulated in 1994, was incomplete as there was no specific directive about discipline among Coast Guard members, Musharraf said.
While drafting the new law, assistance has been taken from the newly-formulated Border Guard Bangladesh Act, the Navy, and Ministry of Public Administration.
The cabinet also directed the authorities concerned to review the draft and make necessary suggestions before sending it to the law ministry for vetting, he said.

Conscription law controversy continues in Israel

The Supreme Court of Israel sitting as the High Court of Justice has given the government until September to explain why the conscription reform statute the Knesset enacted in March should not be invalidated. At issue is whether adult yeshiva students may lawfully be exempted from conscription, given the right to equality. The issue has cast a long shadow over Israeli politics, as explained in this article from Ha'aretz and is likely to be a flashpoint as the deadline set by the court approaches. Israeli institutions have tried everything to finesse the question of draft exemption for ultra-Orthodox haredim, but none seems to have worked, and it now looks like the authorities are "back to square 1." A 9-justice expanded panel will hear the matter, which is raised by three petitions. The law passed in March "among other things will gradually raise military service quotas for ultra-Orthodox men and reduce mandatory service for men from 36 months to 32 months."

Global rise of military associations

In 2010, a Committee of Ministers of the Council of Europe adopted a recommendation on the ‘Human Rights of Members of Armed Forces’ which states that “members of armed forces have the right to freedom of peaceful assembly and to freedom of association . . . [they] have the right to join independent organisations representing their interests . . .” As a result, there is a well-structured social dialogue taking place in Austria, Belgium, Bulgaria, Denmark, Finland, Germany, Hungary, Ireland, Norway, Romania, Switzerland  and the Netherlands concerning military associations. The central question in these debates is how to respect the rights of soldiers to the freedom of association and assembly while at the same time meeting the needs and legitimate concerns of the military, given its unique function. Experience in these European nations has shown that the right of association has not compromised combat efficiency or military discipline. On the contrary, involving democratic military associations in a permanent social dialogue may have de facto improved the morale and loyalty of troops. 

In these European countries, military associations are recognised as valuable partners for defence administrations. For instance, in Germany, the Deutscher Bundeswehr Verband (DBV), an association was created in 1956. It has approximately 200,000 members. The DBV is financed by members’ fees and they employ their own advisory staff. Most of these national military associations are members of the European Organisation of Military Associations (EUROMIL), which was founded in 1972, and which is a conglomerate of more than 42 associations from over 24 EU countries representing approximately 500,000 military members. The stated mission of EUROMIL is that of: “Representing human rights, fundamental freedoms and professional interests of military personnel in Europe”, including the improvement of the living and working conditions of military personnel and the application of and correct implementation of EU social legislation for military personnel.

Quote of the day

"The National Congress has forgotten us."

Incoming Superior Military Tribunal president Maria Elizabeth Rocha. An interview with Justice Rocha, in which she mentions several areas where legislative action may be warranted, appears here. The Brazilian Military Penal Code dates to 1969 and was not updated when Congress revised the civilian Penal Code.

The numbers

As of this morning, Global Military Justice Reform has had over 25,000 hits from readers in 105 countries, 475 posts and 95 comments in just over five months. Thanks again to contributors and readers.

Sunday, June 15, 2014

Disposition standards and the case of Sergeant Bergdahl

Sgt. Bowe R. Bergdahl
A variety of events, not least of them the accelerating conflict in Iraq, have conspired to force the case of Sergeant Bowe R. Bergdahl off the front page and evening news for the moment. Together with widespread dismay about efforts by some to make political hay out of the case, and the fact that he is receiving medical and other attention in Texas while the Army supplements its earlier (still-classified) investigation, the result is that we are currently enjoying a lull in the nationwide speculation about possible military justice proceedings against him. That being the case, it may be worth taking a deep breath and brushing up on some basics.

Under current law, the ultimate decision on the disposition of any charges against Sgt. Bergdahl will be made by a non-lawyer military commander (a matter that has been the subject of sustained attention in the context of sexual offenses but much less so with respect to other kinds of offenses by military personnel). What standards will that officer apply? For this, we need to refer to the Discussion under Rule for Courts-Martial 306(b), which is found in the Manual for Courts-Martial (2012 ed.). It provides this guidance:

Minister Rocha to assume presidency of STM on Monday

Min. Maria Elizabeth Rocha
Consultor Jurídico reports (rough translation):

For the first time in its 206-year history, the Superior Military Tribunal of Brazil will be headed by a woman. Minister Maria Elizabeth Rocha Guimarães Teixeira will be sworn in next Monday (16/6) at a ceremony before the full court in Brasília, scheduled for 5:00 p.m. Minister Fernando Fernandes will assume the Vice-Presidency.

Maria Elizabeth Rocha will complete the term of Minister Raymundo Cerqueira, who has retired. She was also the first female minister to be appointed to the military court, in 2007, occupying one of the three seats reserved for lawyers. She will serve until March 2015.

A major project for the STM will be scanning the court's files. "Historians, political scientists, scholars and jurists have here a source of study that is extremely rich and available to anyone. Scanning will provide public access to important cases in the history of Brazil. This is the first way to disseminate this ancient and little known body of law," she said.

The minister also intends to fight for the inclusion of a representative of Military Justice on the National Council of Justice. "It was an inexcusable oversight when the 45th Amendment did not include the court in the composition of the CNJ, but subjected it to their rulings, which seems absolutely unconstitutional." She also hopes to promote changes in the Military Penal and Criminal Procedure Codes.

Armed Forces Tribunal: twice bitten, not even once shy!

Judicial incorrigibility at times amazes me.

A mirror image of the case I am going to comment upon here has already been reported in these pages, when the Punjab & Haryana High Court (HC) had set aside a Court Martial wherein the Judge Advocate was of an inferior rank than the accused. Of course the HC had intervened after the Armed Forces Tribunal (AFT) failed to render justice.

The HC, in another similar case (Lt Col AC Tiwari Vs Union of India), has now issued a notice of motion to the Union of India as well as the AFT and the next date of hearing is fixed for 31st July 2014.

Colonel Tiwari had challenged the verdict of a Court Martial wherein (besides merits of the charges) one of the grounds put forth was the inferior rank of the Judge Advocate sitting on the Court Martial. The basis of challenge of course was the dicta of the Supreme Court (SC) in Major Charanjit’s (2000) case wherein it was held that inferiority of rank vitiated the Court Martial.

The AFT however, vide its judgement dated 30th January 2014, ruled that the judgement in Charanjit’s case was only applicable to Court Martial cases pending at the time of the said judgement and for the future and not to cases such as the Tiwari’s Court Martial which had already reached finality and whose sentences stood promulgated.

Two weeks to go for Military Justice Review Group suggestions

Don't forget: suggestions should be submitted to the Department of Defense's Military Justice Review Group by July 1 (details here). When you submit your suggestions, please share them with others by pasting them into a non-anonymous comment in response to this post. That will let others have an opportunity to know what is on the Review Group's table and may in turn stimulate further suggestions.